McArthur v. Goddin
| Decision Date | 20 September 1876 |
| Citation | 75 Ky. 274 |
| Parties | McArthur v. Goddin, & c. |
| Court | Kentucky Court of Appeals |
APPEAL FROM CAMPBELL CIRCUIT COURT.
J ARTHUR, A. DUVALL For Appellant,
Ohio Code, secs. 417, 422, 403 to 414, 557 to 573.
General Statutes, sec. 1, art. 3, page 628.
Constitution U.S. sec. 1, art. 4.
Story's Conflict of Laws, page 726.
9 How 413, Townsend v. Jemison.
| 6 Irish Eq. Rep. 256 | 5 Ohio 178 |
| 2 Nash's Treatise, p. 1192. | 11 East, 516. |
13 Peters, 312, McElmoyle v. Cohen.
STEVENSON & O'HARA, For Appellees,
CITED
Constitution U.S. sec. 1, art. 4.
Act of Congress of May, 1790.
Hardin, 415, Rogers v. Coleman, & c.
General Statutes, chap. 71, art. 4, sec. 18.
| 7 Cranch, 481. | 3 Wheaton, 234. | 5 Ohio 181. |
| 1 Peters, 78 and 155. | 1 Littell, 273 and 415. |
3 J. J. Mar. 605, Williams v. Preston
5 Wallace, 290, Christmas v. Russell.
11 Howard, 165, D'Arcy v. Ketchum, & c.
On the 21st of March, 1856, Brown, Goddin & Co. obtained a judgment in the superior court of Cincinnati against the appellant, J. M. McArthur, for the sum of $3,668.09 with interest from the 3d of January, 1855. It is alleged in the original action that the notes evidencing the indebtedness had been lost. At the time this action was instituted, and the judgment rendered, McArthur was a resident of the state of Kentucky, and has continued to reside here since. The service of process on him was acknowledged by an attorney, and an answer filed by the same attorney admitting the execution of the notes, that they were lost, and the indebtedness of the defendant to the plaintiffs as alleged.
No execution having issued on this judgment, the appellees, A. C. Goddin & Co., as surviving partners of Brown, Goddin & Co., on the 22d of September, 1874, filed their petition in the court in which this judgment had been rendered, alleging the recovery, and that the judgment remained unsatisfied, and asking that an order reviving it be entered for the amount due thereon. A summons having been executed on the appellant in this state under the provisions of the Ohio statute, he appeared and resisted the motion to revive, alleging that he had no knowledge of the original judgment or the pendency of the action in which it was obtained, until he was served with process on the petition for revivor; that the entry of his appearance, and filing of the answer by the attorney, were without his authority or knowledge; denied any liability on the notes, etc. On the trial in the proceeding to revive the judgment, testimony was introduced to sustain the defense of the appellant, and upon the hearing, in June, 1875, it was adjudged " that the judgment stand revived, with interest and costs, and that the plaintiffs have their execution against the defendant for the sum of $3,725, his debt aforesaid, with interest at ten per cent per annum from March 1, 1856."
In the month of August, in the year 1875, the appellees, as surviving partners of the firm of Brown, Goddin & Co., instituted the present action in the Campbell Circuit Court, alleging the recovery under the proceedings to revive, for the amount of the original judgment; that the defendant was served with process and made defense; that the judgment was in full force, unsatisfied, and they were entitled to recover, etc. A demurrer to this petition was overruled. An amended petition was, however, filed by the appellees, in which it is alleged that the judgment set up in the original petition was based on the judgment rendered on the 21 st of March, 1856; that this last-named judgment under the statute of Ohio becoming dormant, the same was revived by the judgment mentioned in the original petition, and the same is now in full force, and they are entitled to have and recover the full amount thereof from the defendant, and for which they ask judgment as in their original petition.
The appellant filed an answer to the petition as amended, in which it is alleged that the so-called judgment, dated the 5th of June, 1875, is simply an order made under the statute of Ohio reviving the judgment of the 21st of March, 1856. This statute reads: " If execution should not be sued out within five years from the date of any judgment that now is or may hereafter be rendered in any court of record in this state, or if five years shall have intervened between the date of the last execution issued on such judgment and the time of issuing out another writ of execution thereon, such judgment shall become dormant, and shall cease to operate as a lien on the estate of the judgment debtor." That the judgment of the 21st of March, 1856, constituting the only cause of action against appellant, was rendered more than fifteen years prior to the commencement of the present action; and he pleads and relies on the statute of limitations in such cases made and provided in bar of the action, and further alleges that no execution has ever issued on the judgment of the 21st of March, 1856, or that of the 5th of June, 1875.
By the second paragraph of the answer it is alleged that the judgment was obtained by fraud, and his appearance to the original action entered without his authority or knowledge. The third paragraph is to the effect that the order of revivor is still pending and undetermined, as he has appealed from the same.
The record of the original judgment, as well as the petition to revive, is made part of the pleading by appellant, from which it appears that no execution ever issued on the judgment,?? and that the proceeding to revive was to give vitality to the judgment, so that it might operate as a lien upon the estate of the debtor.
A demurrer to each paragraph of the appellant's answer was sustained by the court, exceptions taken, and the appellant failing to plead further, a judgment was rendered against him, of which he is now complaining.
As to the third paragraph of the answer, we are disposed to adjudge that the remedy sought upon the judgment will not be denied the appellee for the reason only that an action is pending upon the same judgment in another state. There is no allegation that the judgment has been superseded or annulled, and we must give to it the effect of a final judgment between the parties.
As to the second paragraph of the answer, conceding the statements therein contained to present a defense, it is sufficient to say the record discloses that the same defense was made upon the hearing to revive the judgment, proof taken, and the judgment revived. Such being the state of the record, the same matters can not be relied on as a defense to the present action.
The statute of limitations in this state in actions upon judgments is " that an action upon a judgment or decree of any court of this state, or of the United States, or of any state or territory thereof, the period to be computed from the date of the last execution thereon, etc., shall be commenced within fifteen years after the cause of action first accrued."
It is insisted by counsel for the appellees that to sustain such a defense would be to violate that provision of the Federal Constitution which declares that " full faith and...
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