Mason v. Finley

Decision Date17 April 1928
Docket NumberCase Number: 17851
PartiesMASON v. FINLEY, Adm'r, et al.
CourtOklahoma Supreme Court
Syllabus

¶0 Judgment--Action by Administrator on Dormant Judgment in Favor of Former Administrator Against Trustee not Maintainable Where no Revivor Within One Year.

An action by an administrator of the estate of a deceased person, joined by one of the heirs of such deceased person, based upon a judgment obtained by a former administrator of such estate, which former judgment, in addition to a finding that the defendant was trustee for such deceased person and held certain money in his possession, as trustee, rendered judgment in favor of the administrator therefor, cannot be maintained where more than five years elapsed after execution might have issued on the former judgment, and more than one year had elapsed after the expiration of five years, without any proceedings having been taken to revive such former judgment.

Commissioners' Opinion, Division No. 2.

Error from District Court, Carter County; Asa E. Walden, Judge.

Action by J. H. Finley, administrator of the estate of Malissa J. Vaughan, deceased, and Bertha Kay, nee Vaughan, against I. R. Mason. Judgment for plaintiffs, and defendant appeals. Reversed.

J. A. Bass and Geo. A. Ahern, for plaintiff in error.

Brett & Brett, for defendants in error.

DIFFENDAFFER, C.

¶1 On December 17, 1917, Tomlinson Fort, administrator of the estate of Malissa J. Vaughan, obtained a judgment in the district court of Carter county against Ira R. Mason, in which findings of fact were made, finding that Fort was the duly appointed, qualified, and acting administrator of the estate of Malissa J. Vaughan, deceased; that during the lifetime of said Malissa J. Vaughan, Mason received from her a certain sum of money as trustee; that the trust relation continued for a period of about nine years prior to her death, and that no settlement was had during the lifetime of said Malissa J. Vaughan; that Mason then held the sum of $ 1,680 as "trustee and agent of Malissa J. Vaughan, and as estate and for the use and benefit thereof." The judgment was that the plaintiff, Tomlinson Fort, administrator of the estate of Malissa J. Vaughan, have and recover of and from the defendant, Ira R. Mason, the sum of $ 1,680, with interest at 6 per cent. from date of judgment, and costs. The judgment further ordered and decreed that said defendant, Ira R. Mason, pay said sum into court, for plaintiff, within 60 days.

¶2 This action was filed on November 8, 1924, by J. H. Finley, administrator of the estate of Malissa J. Vaughan, deceased, and Bertha Kay, nee Vaughan, against the same defendant, I. R. Mason. The petition sets out that Finley is the duly appointed, qualified and acting administrator of the estate of Malissa J. Vaughan, and alleges that plaintiff, Bertha Kay, is a granddaughter and heir of Malissa J. Vaughan, deceased. The petition then alleges that defendant, Mason, was entrusted with said sum of $ 1,680, as found and held in the former judgment, and refers to and makes the former judgment, being judgment in cause No. 3767, in the district court of Carter county, a part of petition, the same as if fully set out and copied therein, and alleges that said sum of $ 1,680 has never been paid by defendant, and that same was still held by him in trust, and prays for judgment for same.

¶3 Mason filed a demurrer to this petition, but it appears that on May 1, 1925, demurrer was overruled by agreement of parties, and no exceptions were saved. The defendant answers by general denial, and also pleads that if there is any judgment against him in cause No. 3767 in the district court of Carter county, such is a money judgment, and alleged that no execution has ever been issued on said judgment since its date December 17, 1917, and that more than five years elapsed without an execution having issued, and that said judgment was not revived within one year after the five years had elapsed; and that said judgment is dead, and cannot now be revived.

¶4 No reply was filed to the answer or amended answer. The cause was tried to the court without a jury, and judgment rendered in favor of defendants in error, hereinafter referred to as plaintiffs, against plaintiff in error, hereinafter referred to as defendant, for the sum of $ 2,398.19, being the amount due on said former judgment, including interest thereon at 6 per cent. from January 10, 1918, the date upon which the trial court in this action finds that defendant should have paid said sum into court under the former judgment. From this judgment, the defendant brings this appeal.

¶5 It is conceded that no execution was issued on the former judgment within five years after its date, or at all. It is also conceded that the former judgment was not revived in the name of the administrator, nor in the name of the heirs at law of said Malissa J. Vaughan, deceased. Nearly seven years elapsed between the date of the former judgment and the filing of the petition in the instant case. The trial court based its judgment in the instant case on the finding of the court in the former judgment that defendant held the money in trust as trustee for Malissa J. Vaughan. The trial court in effect held that the statute did not run against the judgment for the reason that the statute of limitation does not run against an express or continuing trust.

¶6 It is, as a general rule, true that the statute of limitation does not run against an express continuing trust. 39 Cyc. 600. The record discloses that in the former trial defendant denied liability. The judgment established the trust relation, and in addition thereto fixed the amount of money held by defendant as trustee, and allowed the recovery thereof by the administrator. What, then, was the necessary effect of this judgment? In Olson v. Dahl, 99 Minn. 433, 116 A. S. R. 435, 109 N.W. 1001, it was held that a cause of action is merged in the judgment and becomes extinct. In United States v. Jacob and Isaac Leffler, 11 Pet. (U.S.) 86, 9 L. Ed. 642, it is said:

"If there be any one principle of law settled beyond all question, it is this, that whensoever a cause of action in the language of the law, transit in rem judicatam, and the judgment thereupon remains in full force unreversed, the original cause of action is merged and gone forever."

¶7 This principle has been recognized in this court in many cases. In Cressler v. Brown, 79 Okla. 170, 192 P. 417, Mr....

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2 cases
  • Thomos v. Murkay
    • United States
    • Oklahoma Supreme Court
    • October 1, 1935
    ...limitations will not run against a person in trust capacity have no application to a judgment against a trustee. Mason v. Finley, Arm'r, et al., 134 Okla. 89, 272 P. 408. See, also 21 A. L. R. 1039. ¶10 If this were an action upon a judgment and the pleader had attempted to plead around the......
  • Mason v. Finley
    • United States
    • Oklahoma Supreme Court
    • April 17, 1928

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