Osborne v. Lindstrom
| Decision Date | 31 October 1899 |
| Citation | 81 N.W. 72,9 N.D. 1 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Grand Forks County, Fisk, J.
Action by Judson C. Osborne against Christian L. Lindstrom. Judgment for plaintiff, and defendant appeals.
Reversed.
District Court of Grand Forks county set aside, and order set aside sustaining the demurrer to the answer, and order entered overruling the same.
Cochrane & Corliss, for appellant.
It is not necessary that the law lessening the time in which to sue, should contain a provision prescribing the period within which persons holding causes of action must sue. Braithwaite v. Bank, 7 N.D. 358; Bigelow v Bemis, 2 Allen, 496; State v. Jones, 21 Md 432; Burke v. Ass'n. 40 Minn. 506. In determining what is a reasonable time, the Court must consider the time when the law was approved, and not the time when it took effect. If a reasonable time has elapsed between its passage and approval and the time when it became operative a reasonable period to sue is thereby afforded. Braithwaite v. Bank, 7 N.D. 358; Wrightman v Boone County, 82 F. 412; Duncan v. Menard, 21 N.W. 714; Eaton v. Supervisors, 40 Wis. 673; Hedger v. Renneker, 3 Metc. (Ky.) 255; Smith v. Morrison, 22 Pick. 430; Stine v. Bennett, 13 Minn. 153; State v. Jones, 21 Md. 432; Bigelow v. Bemis, 2 Allen 496; Korn v. Browne, 64 Pa. 55-57; Pierce v. Toby, 5 Metc. 172; Clay v. Iseminger, 41 A. 38. The reason of the rule prohibiting a plaintiff from suing upon a judgment without leave of court, is found in the fact that the common law rule that a party might sue upon a judgment immediately after its rendition often worked hardship to the debtor. § 35, Code C. Pro. 1877; Comp. Laws, § 4831. Under such statutes the fact that leave was not obtained before commencing the suit is not fatal to the action. Plaintiff may obtain an order granting such leave nunc pro tunc. Stoddard Mfg. Co. v. Mattice, 72 N.W. 891; Church v. Van Buren, 55 How. Pr. 489; Lane v. Saulter, 4 Rob. 239. Such statutes do not prevent the assignee of a judgment or the personal representative of the judgment creditor from suing. Carpenter v. Butler, 28 Hun. 251; Hedges v. Conger, 10 N.Y.S. 42; McButt v. Hirsh, 4 Abb. 441; Tufts v. Braistad, 4 Duer, 607; Kopper v. Howe, 2 Hilt. 69; Smith v. Britton, 12 How. Pr. 537. Formerly an action upon a judgment could not be brought after twenty years from the time the cause of action accrued. § § 4833, 4849, Comp. Laws. At the same time the statute now found in Sec. 5215, Rev. Codes, was in force, declaring that the time an action is stayed by statutory prohibition, shall not be considered a part of the limitation period. § 4864, Comp. Laws. If the doctrine of Weiser v. McDowell, 61 N.W. 1094, is sound as applied to this case, it would be equally sound under the laws of 1877 and the result would be that no lapse of time would have barred an action upon a judgment. The revisors in cutting down the limitation to ten years, gave the creditor a year to renew his judgment before it would outlaw.
Bangs & Guthrie, for respondent.
A cause of action upon a judgment does not accrue until the expiration of nine years from the date of the rendition of the judgment. § 5182, Rev. Codes. If the cause of action does accrue at the date of the rendition of judgment, then the same is stayed for the period of nine years and the statutory stay cannot be considered a portion of the time within which an action may be begun, and plaintiff has nineteen years from the rendition of judgment within which to sue upon it. Weiser v. McDowell, 61 N.W. 1094; Casady v. Grimmelman, 77 N.W. 1067. The amended statute of limitations enacted in 1895 does not apply to judgments rendered prior to its passage. § 5146, Rev. Codes; Cooley Const. Lim. 455; Suth. St. Constr. 463; 23 Am. & Eng. Enc. L. 448; Sohn v. Waterson, 84 U.S. 596; 21 L.Ed. 737; Potter's Dwarris on Statutes, 162, n. 9. The reasonable time is computed from the date the new law is passed and not from the time it takes effect. Bank v. Braithwaite, 7 N.D. 358-372. But this rule cannot apply to the case at bar because among other reasons it was impossible for the legislature to know when the codes would take effect. The legislature did not by express language make the amended statute apply to existing causes of action, as required by § 5146, Rev. Codes. In shortening the period of limitation, the legislature must give a reasonable time for plaintiff to bring his suit before his right is barred. Is two months and fifteen days a reasonable time? 13 Am. & Eng. Enc. L. 695-696, 697, 701; Cooley's Con. Lim. 449; Wood on Limitation of Actions, 38; Lewis v. Lewis, 7 How. 776; Terry v. Anderson, 95 U.S. 628; Sohn v. Waterson, 84 U.S. 596; Turner v. New York, 168 U.S. 789; McKisson v. Davenport, (Mich.) 10 L. R. A. 507; Culbreth v. Downing, 121 N.C. 205, 61 Am. St. Reps. 661; Moore v. Brownfield (Wash.) 34 P. 199; Bowan v. City, (Wash.) 49 P. 551; Kennedy v. DesMoines, (Ia.) 50 N.W. 880; Webster v. Am. Bible Society, (Ohio) 33 N.E. 297; Parmenter v. State (N. Y.) 31 N.E. 1035; Wooley v. Yarnell, (Ills.) 32 N.E. 891; Price v. Hopkins, 13 Mich. 318; Sprecker v. Wakeley, 11 Wis. 432; McKinney v. Springer, 8 Blackf. 506; Davis v. Miner, 1 How. 183; Girdner v. Stephens, 1 Heisk. 280; Woart v. Winnick, 3 N.H. 473; Goshen v. Stromington, 4 Conn. 209; Bradford v. Brooks, 16 Am. Dec. 715.
This action was brought in April, 1897, upon a judgment rendered in 1883. The defendant answered, pleading the statute of limitations. To this answer a general demurrer was interposed, which was sustained, and, defendant electing to stand upon his answer, final judgment was rendered against him, from which he appeals, assigning error upon the ruling of the court upon the demurrer.
At the time of the rendition of the judgment upon which the action was based, the period of limitation of actions upon judgments was twenty years. Section 52, Code Civ. Proc. 1877. Such remained the law until the Revised Codes of 1895 went into effect, section 5200 of which reduced the limitation to ten years, and a subsequent section repealed the pre-existing limitation law. The Revised Codes were prepared pursuant to chapter 74, Laws 1893, which created a commission for that purpose. That act prescribed the duties of such commission as to existing laws, and by section 4 provided that, as soon as practicable after the adjournment of the fourth legislative session (which would be the session of 1895), said commission should complete its labors by incorporating with the Codes all the laws of that session, should consecutively number the sections, and index the whole, advertise for 30 days for bids for printing the same, and should superintend the printing of 2,500 volumes thereof. Section 7 provided that these volumes should be delivered to the secretary of state, and that thereupon the governor should issue his proclamation announcing such fact, and accepting such Codes, and that the same should go into effect thirty days after the date of such proclamation. The entire Code of Civil Procedure, as it stands in the Revised Codes, was passed as a single bill by the fourth legislative assembly, and was approved March 2, 1895. The printed volumes of the Revised Codes were completed and delivered to the secretary of state about December 1, 1895, and the governor issued his proclamation accepting the same, so that they went into effect on January 1, 1896.
It will thus be seen that the judgment upon which this action is based was rendered nearly twelve years before the new statute of limitations was enacted, and more than twelve years before it went into effect. It is the contention of respondent that the limitation law of 1895 applies only to causes arising thereafter, and not to preexisting causes of action, or that, if it be held to apply to causes of action already in existence, as to the cause of action in this case it is unconstitutional, because it bars the cause of action without leaving a reasonable time within which to assert it. On the other hand, appellant claims that the amended law applies to causes of action already existing, as well as to causes thereafter arising, and that as to the cause of action in this particular case the act is constitutional, because respondent was bound to take notice of the passage of the act and of its terms, and he had all the time from that date, to-wit: March 2, 1895, until the act went into effect, on January 1, 1896, within which to bring his action upon the judgment, and that this was a reasonable time therefor. Some of the questions that necessarily arise in this case were involved in the case of Bank v. Braithwaite, 7 N.D. 358, 75 N.W. 244, and some of them were there ruled. That case is much discussed by counsel in this case, and it is proper that we state some matters concerning that case that may not wholly appear from the opinion filed. The case arose under this same statute. The limitation of ten years had not run against the judgment there involved at the time of the enactment of the amended statute, nor at the time it took effect, nor until three and one-half months thereafter. We held that as to that judgment the law was constitutional, because there remained a reasonable time within which to assert that cause of action, and that no action could be maintained thereon after ten years. But that was not the chief contention in that case, nor the one to which the energies of counsel and the attention of the court were directed. In that case no attempt was made to bring an action on the judgment. Supplementary proceedings on execution had been instituted before the expiration of the ten years, and were pending when the bar of the statute fell. The chief...
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