Peters v. Vawter

• Decision Date: 27 October 1890
• Parties: PETERS v. VAWTER et al.
• Court: Montana Supreme Court

25 P. 438

10 Mont. 201

PETERS v. VAWTER et al.

Supreme Court of Montana

October 27, 1890

Appeal from district court, Lewis and Clarke county; WILLIAM H HUNT, Judge.

This is an appeal from a special order made after final judgment refusing plaintiff leave to issue execution upon a judgment. The following are the facts: On December 8, 1883, judgment was duly entered against defendants, in favor of plaintiff for $1,161.40, costs, etc. January 15, 1884, execution was issued, and on August 6, 1884, was returned wholly unsatisfied. On December 2, 1889, an affidavit was filed by plaintiff showing that the judgment remained unsatisfied, and other facts, as required by section 349, Code Civil Proc. cited below, and therewith, on the same day, a written motion "for leave to issue execution against the defendants said motion being based upon the affidavit herewith filed." Nothing further was done until December 16, 1889, when the following was filed. "To Cornelius L. Vawter, etc.: You, and each of you, will please take notice that ten days after the service of this notice upon you, or as soon thereafter as counsel can be heard, the undersigned, the attorneys for plaintiff in the above-entitled action, will move the court for an order granting plaintiff leave to issue an execution upon the said defendants." Signed by plaintiff's attorneys. This notice was served on defendant Vawter, December 16th. It is not apparent when this motion was brought to the attention of the court. It was denied March 20, 1890. It does, however, appear from the record that the court was not moved, the application to the court was not made, prior to December 8, 1889, the day upon which six years from the entering of the judgment expired. The motion being denied, plaintiff appeals. Section 421, subd. 3, Code Civil Proc. The question upon the appeal is the construction of the following statutes: Section 410, Code Civil Proc.: "The writ of scire facias *** is abolished. The remedies obtainable in that form may hereafter be obtained by civil actions." On February 13, 1874, the following section was a portion of the codified laws, (Civil Practice Act, § 250:) "The party in whose favor judgment is given may, at any time within five years from the entry thereof, issue a writ of execution for its enforcement, as prescribed in this chapter." The above law being upon the statute-book, the act of February 13, 1874, provided as follows: "Sec. 7. After the lapse of five years from the entry of judgment, an execution can only be issued by leave of the court, upon motion, with personal notice to the adverse party, unless he be absent, or non-resident, or cannot be found to make such service, in which case service may be made by publication, or in such other manner as the court may direct. Such leave shall not be given unless it be established by the oath of the party, or other satisfactory proof, that the judgment, or some part thereof, remains unsatisfied and due; but the leave shall not be necessary when the execution has been issued on the judgment within the five years, and returned unsatisfied in whole or in part." Section 7, just cited, now appears in Comp. St. (Code Civil Proc.) as section 349. In Code Civil Proc. 1887, § 301, section 250 of the Civil Practice Act (codified statutes, supra) was changed so that "five years" read "six years," and in that form it became section 312 of the present Code of Civil Procedure. Therefore this case has to do with the construction of section 312, Code Civil Proc., as follows: "The party in whose favor the judgment is given may, at any time within six years after the entry thereof, issue a writ of execution for its enforcement, as prescribed in this chapter," and section 349, Id., which is in the words as set forth above as section 7, Act Feb. 13, 1874. Section 307, Code Civil Proc., provides that a judgment shall be a lien for six years from the day of its docketing. By section 41, Id., (the amendment to that law, 16th Sess. p. 172, being not material to this inquiry,) an action upon a judgment is barred in six years.

Toole & Wallace, for appellant.

Shober & Rowe, for respondents.

DE WITT, J., (after stating the facts as above.)

The recent decision of this court in Wallace v. Lewis, 24 P. 22, restricts the inquiry herein to narrow limits. That case holds that a motion is an application to the court for an order; that the court must be moved to grant the order and, when so moved, the proceeding is a motion. In this view no motion was made for leave to issue execution in the case at bar until after December 8, 1889, which was after the expiration of six years from the entering of the judgment, and after the expiration of the period respectively limited in sections 41, 307, 312, Code Civil Proc. We are therefore left only the inquiry whether the court may grant leave to issue execution after the expiration of the period within which section 312 seems to limit its issuance; and incidentally after an action upon the judgment is barred, (section 41, Id.,) and after the lien of the judgment is lost, (section 307, Id.) These two latter sections we mention only as statutory suggestions, in pari materia, as to the length of life of a judgment. In other words, are these laws an absolute limitation of the life of a judgment, as is contended by the respondents, and held by the district court, or is the appellant's position correct that not only may execution issue of course within five years, and by motion in the sixth year, but also upon motion, under section 349, at any time after six years? If appellant's construction of the statutes be correct, then a judgment becoming dormant at the end of the fifth year may, after that time, and also for all time in the future, be vitalized sufficiently to support an execution, by motion; that is to say that, even after six years, the judgment only sleeps, but lives forever. Appellant's position is...