Hummer v. Lamphear

• Decision Date: 09 October 1884
• Citation: 4 P. 865,32 Kan. 439
• Parties: JOHN P. HUMMER, et al., v. A. H. LAMPHEAR
• Court: Kansas Supreme Court

4 P. 865

32 Kan. 439

JOHN P. HUMMER, et al., v. A. H. LAMPHEAR

Supreme Court of Kansas

October 9, 1884

Error from Jackson District Court.

AT the March Term, 1884, plaintiff Lamphear recovered a judgment for $ 546.17, with interest and costs, against defendants Hummer and wife, who bring the case to this court. The opinion states the nature of the action, and the material facts.

Judgment affirmed.

Hudson & Tufts, for plaintiffs in error.

Martin & Orr, for defendant in error.

HORTON C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

The facts in this case are as follows: On June 17, 1876, the Perpetual Building and Saving Association recovered in the district court of Atchison county a judgment against John P and Matilda W. Hummer for the sum of $ 321.08, bearing interest at nine per cent. per annum. June 6, 1881, an execution was issued upon this judgment, which was returned wholly unsatisfied as to the Building and Saving Association. On September 13, 1882, the judgment was assigned and transferred to A. H. Lamphear, who is now the owner thereof. On September 28, 1882, an alias execution was issued upon the judgment, directed to the sheriff of Jackson county Kansas, and this execution was also returned unsatisfied. On November 24, 1883, A. H. Lamphear brought his action in the district court of Jackson county against John P. and Matilda W. Hummer, upon the judgment in favor of the Building and Saving Association of June 17, 1876, and alleged in his petition that the judgment was in full force and effect; that John P. and Matilda W. Hummer had no personal property within the state of Kansas subject to execution, nor the legal title to any lands or real estate in said state, subject to execution; that Matilda W. Hummer was the owner of an equitable interest in a quarter-section of land lying in Jackson county, state of Kansas, the legal title to which was in the state of Kansas, to secure the sum of $ 676.30 with interest from June 17, 1882, at ten per cent. per annum; that upon the payment of this amount and interest, the state was ready and willing to give a deed or patent conveying the land and the legal title thereto. The prayer of the petition was, that judgment should be rendered against John P. and Matilda W. Hummer for the sum of $ 331.08 with interest at nine per cent. per annum, and costs of suit; that the sheriff of Jackson county be appointed a receiver to ascertain the interest of Matilda W. Hummer in the land described in the petition; that he take possession of the same and hold it with the rents and profits arising therefrom, subject to the order of the court; and for other and further relief as the court might deem meet and proper.

The defendants, John P. and Matilda W. Hummer, demurred to the petition, upon the grounds -- First, That the court had no jurisdiction of the persons of the defendants, or of the subject of the action; second, that the petition did not state facts sufficient to constitute a cause of action against the defendants, or either of them. The court overruled the demurrer, and rendered judgment against the defendants for $ 546.17, with interest and costs; adjudged the same to be a first and prior lien on whatever interest the defendants or either of them had in the real estate described in the petition, and decreed that if the defendants failed or refused to pay the judgment within a day named, an order of sale issue to sell the property to satisfy the same. To the rulings and judgment of the court the defendants excepted.

It is their contention at this time, that the petition does not state facts sufficient to constitute a cause of action, because upon its face it appears that the judgment sued on was, at the commencement of this suit, in full force and effect, and that execution might have issued thereon, and the equitable interest of Matilda W. Hummer in the real estate in Jackson county taken by execution. (Code, §§ 419, 443; Comp. Laws of 1879, ch. 104, § 1, subdiv. 8.) To support this, it is insisted that at common law an action could not be maintained upon a judgment until the time within which an execution might issue had elapsed. (Pitzer v. Russel, 4 Ore. 124; Lee v. Giles, 1 Bailey 449 -- 21 Am. Dec. 476; 3 Bl. Com., Wendell's, ed., 160.)

Counsel say, in their brief:

"There are dicta in several decisions which would seem to take a contrary view, but we have been unable to find a case where the question was squarely raised, and the decision was that such an action could be maintained at common law until the judgment became dormant or the execution would prove ineffectual. . . . Burnes v. Simpson, 9 Kan., decides that an execution can be maintained on a domestic judgment in this state, which is true; but whether it can be maintained when an execution can issue thereon was not raised in that case, and consequently not examined. We claim that that case does not decide the question now raised."

The decision in Burnes v. Simpson, supra, goes farther than counsel are willing to concede. In that case the judgment was rendered June 4, 1859, for $ 3,054 and costs; executions were issued as follows: September 28, 1859; November 28, 1859; January 27, 1860; August 15, 1864; May 2, 1869. All of these were returned unsatisfied. The action on the judgment was commenced June 2, 1869. Under the law in force at the rendition of the judgment of June 4, 1859, judgments of the district courts were liens for five years on lands and as long thereafter as the judgment should be kept alive by the issue of executions in proper time. (Comp. Laws of 1862, Civil Code, §§ 433, 434.) The judgment of Burnes v. Simpson of June 4, 1859, was in full force and unsatisfied when the action of June 2, 1869, was instituted, as it had been kept alive by the issuance of executions in accordance with the provisions of the statute. Therefore the decision in Burnes v. Simpson upon the record in that case decides in effect that an action can be maintained upon a judgment in this state, although the judgment is in full force, and the time within which an execution can be issued has not expired. As counsel have been unable "to find a case where the question was squarely raised and it was decided that such an action could be maintained at common law until the judgment became dormant or the execution would prove ineffectual," we refer to the following authorities:

"Debt lies upon a judgment within or after the year after the recovery." (Wheaton's Selw. 600.)

"By common law, an action could be maintained within a year and a day on a domestic judgment, that being the life of a judgment without issuance of execution." (3 Comyn's Digest, 1792, Debt, A 2, 43 Edw. III, 3, 2b.)

In Ames v. Hoy, 12 Cal. 11, it was insisted by counsel "that as an execution could have been issued on the judgment, no action could be sustained thereon; or, in other words, that an action of debt will not lie on a judgment if an execution can be issued thereon." Upon this point, the court -- Baldwin, J., delivering the opinion -- said:

"The chief argument is that there is no...