Murphy v. Klein

• Decision Date: 19 March 1894
• Citation: 15 So. 658,71 Miss. 908
• Court: Mississippi Supreme Court
• Parties: JOHN MURPHY ET AL. v. GEORGE M. KLEIN ET AL

15 So. 658

71 Miss. 908

JOHN MURPHY ET AL. v. GEORGE M. KLEIN ET AL

Supreme Court of Mississippi

March 19, 1894

FROM the chancery court of Warren county, HON. CLAUDE PINTARD Chancellor.

The bill in this case was filed August 14, 1892. It alleges that the several judgments against John A. and George M. Klein therein mentioned, were rendered at different dates from 1883 to 1891. It will thus be seen that the question involved arose under the code of 1880, § 1741 of which is as follows: "It shall not be necessary to revive a judgment by scire facias, because no execution shall have been issued on such judgment within a year and a day after its rendition but execution may be issued without such revival." Section 2674 of said code, limiting actions on judgments to seven years, provided that no execution should issue on a judgment but within seven years of the date of issuance of the last execution. This statute is brought forward as § 2743, code 1892, which provides, however, that an execution shall not issue on any judgment after seven years from the date of the judgment.

Decree reversed and cause remanded.

Wade R Young, for appellants.

That complainant's judgments are not barred by limitation is settled in Buckner v. Pipes, 56 Miss. 366. Since that decision, it has been enacted that it is not necessary to revive a judgment by scire facias, because no execution shall have been issued within a year and a day, but that execution may be issued without such revival. Code 1880, § 1741. In view of the above decision and this statute, the question involved is of easy solution.

In Harris v. West, 25 Miss. 156, followed by the court below, the facts were entirely different from the facts of this case. There it appears that plaintiff did not have the execution issued for the purpose of being levied. The court did not hold that the debtor must have assets, or that there must be a hope of realizing the money by a levy, but simply that the execution must issue bona fide.

Under the chancellor's decision, it would be impossible to keep a judgment alive by the issuance of execution where the debtor is hopelessly insolvent, because, in such case, there could be no expectation of making the money. All that the law requires is that the execution shall issue for the purpose of enforcing the judgment if there is property upon which to levy.

Seavy v. Bennett, 64 Miss. 735, and Jackson v. Scanland, 65 Ib., 481, are not applicable, as in the former execution was not even issued for the purpose of keeping the judgment alive, and in the latter it was sued out by one having no authority.

Dabney & McCabe, for appellees.

1. The question is whether a judgment can be kept alive by issuing execution without any purpose or hope that it shall be levied, and simply with a view to preventing the bar of the statute of limitations. It has been decided that the bar cannot thus be prevented. Harris v. West, 25 Miss. 156; Seavy v. Bennett, 64 Ib., 735; Jackson v. Scanland, 65 Ib., 481.

2. The demurrer is to the interrogatory propounded in the cross-bill, and not to its allegations. Defendants having demurred to a part of the cross-bill, without any response to the remainder, the demurrer cannot be sustained.

OPINION

COOPER, J.

The appellants, who are judgment creditors of John A. & George M. Klein, exhibited their bill to subject to the satisfaction of their judgments certain real and personal property, which, it is claimed, was fraudulently conveyed by their debtors to the other defendants. It appears from the bill of complaint that the judgments which are the foundation of the proceedings, were rendered more than seven years before the bill was filed, but it is averted that they have been kept alive by the issuance of successive executions. The defendants answered the bill, and then, by way of cross-bill alleged that while the judgments in favor of the complainants were apparently good and valid, yet in fact they were void or discharged by the statutes of limitation; that none of the executions issued under the judgments were bona fide, and for the purpose or in the hope of collecting and enforcing the judgments. The prayer of the cross bill is that the defendants thereto be summoned and required to answer under oath, "stating whether or not they have ever caused executions to be issued on their judgments respectively; and, if so, when and for what purpose, and what effort, if any, they made to have levies of said executions made, or whether they simply caused them to be sued out, if at all, for the purpose of having them issued without any purpose or...