Norris v. Tripp

• Citation: 82 N.W. 610,111 Iowa 115
• Parties: NORRIS v. TRIPP, SHERIFF, ET AL. (THREE CASES).
• Decision Date: 14 April 1900
• Court: United States State Supreme Court of Iowa

111 Iowa 115

82 N.W. 610

NORRIS

v.TRIPP, SHERIFF, ET AL. (THREE CASES).

Supreme Court of Iowa.

April 14, 1900.

Appeal from district court, Jasper county; John T. Scott, Judge.

Plaintiff, a judgment defendant in three judgments, brings these actions against the sheriff and the other defendants named, plaintiffs in said judgments, to enjoin the sale of real estate on executions issued on said judgments, on the ground that the judgments were barred by the statute before the executions were issued. Defendants resisted, claiming that the matters stated in the petitions do not entitle the plaintiff to the relief demanded. Applications were made in each case to Honorable John T. Scott, judge, in vacation, for temporary writs, and submitted on the verified petitions and the resistances thereto. The applications were denied, and plaintiff appeals. Affirmed.Harrah & Myers, for appellant.

W. O. McElroy and F. H. Clements, for appellees.

GIVEN, J.

1. As these cases involve the same question, they are argued and submitted together, and will be so disposed of. The petitions show: That judgments were rendered in the circuit court of Jasper county, Iowa, against the plaintiff, as follows: One in favor of D. S. Morgan & Co., March 20, 1877; one in favor of S. W. Cobb & Co., March 20, 1877; and one in favor of James H. Elliott, January 19, 1877. That executions were issued on each of said judgments on the 11th day of August, 1899, and delivered to the defendant Tripp, sheriff, and that he levied the same upon certain lands belonging to this plaintiff, and was about to sell the same under said executions. The petitions also show that the plaintiff has been continuously a resident of Jasper county for more than 30 years last past, and that there has been no revivor of any of said judgments or of the debts for which they were rendered. It is alleged that the indebtedness for which these judgments were rendered was contracted prior to the enactment and taking effect of the Code of 1873. In the case against S. W. Cobb & Co. allegations are made showing a want of consideration for the indebtedness upon which that judgment was rendered, but, the judgment being conclusive as to such matters, they cannot now be considered. It will be seen from what we have said that over 22 years elapsed between the rendition of each of these judgments and the issuing of execution thereon, and that nothing had occurred to stop the running of the statute of limitations as against the judgments.

2. Out of these facts we have the single question whether these judgments were barred at the time the executions were issued. To solve this, we must first ascertain what the limitation is. If it was as fixed by the Revision of 1860, in force when the debts were contracted, it was 20 years after the rendition of the judgments; if as fixed by the Code of 1873, as construed in Weiser v. McDowell, 93 Iowa, 772, 61 N. W. 1094, it was 20 years from the expiration of 15 years next following the rendition of the judgments; and if as fixed by the present Code, it is 20 years from the rendition of the judgments. There is no dispute but that such are the limitations provided in said statutes; the contention is as to which applies to these cases. Section 50 of the Code of 1873, in relation to the repeal of former statutes, provides as follows: “Sec. 50. This repeal of existing statutes shall not affect any act done, any right accruing or which has accrued or been established, nor any suit or proceeding had or commenced in any civil cause before the time when such repeal takes effect; but the proceedings in such cases shall be conformed to the provisions of this Code as far as consistent.” Plaintiff contends that the rights under these contracts of indebtedness were rights accruing when the Code of 1873 went into effect; that the limitations pertaining thereto and to judgments thereon were part of such rights, and that said rights are expressly reserved from the operation of the repeal, and left to be governed by the former statute. Defendants contend that rights as to the limitation of actions upon said judgments were not accruing nor accrued rights at the time the Code of 1873 took effect, and that, said judgments having been rendered under that Code, the limitation therein provided applies, not the limitation provided in the Revision of 1860. “It is a fundamental principle recognized by this and other courts that the statute of limitations pertains to the remedy only, and not to the essence or merits of an obligation.” Weiser v. McDowell, supra, and cases cited. The rights referred to in said section 50 are those arising upon the contracts, not such as pertain exclusively to the remedy. “It is undoubtedly within the statutory power of the legislature to require, as to existing causes of action, that suits for their enforcement should be barred unless brought within a period less than that prescribed at the time the contract was made or the liability incurred from which the cause of action arose. The exercise of this power is, of course, subject to the fundamental condition that a reasonable time, taking all the circumstances into consideration, be given by the new law for the commencement of an action before the bar takes effect.” Koshkonong v. Burton, 104 U. S. 668, ...