Joyce v. Means
| Decision Date | 09 March 1889 |
| Citation | 41 Kan. 234,20 P. 853 |
| Parties | THOMAS JOYCE et al. v. THOMAS MEANS |
| Court | Kansas Supreme Court |
Error from Doniphan District Court.
THE opinion states the case. Judgment for defendant Means, at the December term, 1883. The plaintiffs bring the case here.
Judgment affirmed.
Ryan & Woods, for plaintiffs in error.
L. F Bird, for defendant in error.
OPINION
On March 24, 1874, the plaintiffs, Thomas Joyce and Mary Joyce who were husband and wife, mortgaged certain real estate to the defendant, Thomas Means, and on December 19, 1874, the mortgage was duly recorded. In December, 1876, the mortgage indebtedness was duly paid and discharged, but the defendant failed to discharge the mortgage of record. About the month of December, 1880, the plaintiffs demanded of the defendant that he should discharge and release the mortgage of record, and the defendant agreed to do so, but still failed. The plaintiffs afterward and on several different occasions further requested the defendant to enter satisfaction of record of the mortgage, and at each time he agreed to do so, but has in all cases failed, and has never done so. Afterward, but just when is not shown, the plaintiffs commenced this action to recover the penalty prescribed by § 8 of the act relating to mortgages. It appears, however, from the findings of the court below, that some of these demands were made more than one year prior and some of them within less than one year prior to the commencement of this action. Section 8 of the act relating to mortgages provides that where the mortgagee or his assignee shall, after satisfaction of the mortgage and after demand, fail to enter satisfaction of the mortgage of record or to cause the same to be done, the mortgagor or his grantee or heirs shall have a cause of action against such mortgagee or assignee to recover $ 100 as damages, and the defendant claims that the cause of action thus created and given is a statutory "penalty or forfeiture" within the meaning of the fourth subdivision of § 18 of the civil code, which provides that a party shall have only one year within which to commence "an action upon a statute for a penalty or forfeiture;" and therefore the defendant claims that the cause of action in the present case was barred before this action was commenced. The court below found and held that the plaintiff's cause of action was barred, and we think rightly. We think the action is for the recovery of a penalty given by statute, although the statute giving the action designates the thing to be recovered as damages. We have heretofore designated these damages as a penalty. (Thomas v. Reynolds, 29 Kan. 304; Perkins v. Matteson, 40 id. 165; same case, 19 P. 633; Hall v. Hurd, 40 Kan. 374; same case, 19 P. 802.) And such...
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...23 S.Ct. at 429-30. State courts have held statutes referring to "damages" as in fact providing for a penalty. Joyce v. Means, 41 Kan. 234, 235, 20 P. 853, 853 (1889); Spence v. Thompson, 11 Ala. 746, 750 (1847). Moreover, the legislative history of Sec. 6673 supports the view that it is a ......
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