Reaves & Co. v. Brother
| Decision Date | 07 December 1901 |
| Docket Number | 12,404 |
| Citation | 66 P. 1030,63 Kan. 700 |
| Court | Kansas Supreme Court |
| Parties | REAVES & CO. v. J. A. LONG & BROTHER |
Decided July, 1901.
Error from Labette district court; A. H. SKIDMORE, judge.
Judgment affirmed.
SYLLABUS By THE COURT.
JUDGMENT--Revivor. A judgment can only be revived without the consent of the judgment debtor when the order of revivor is made within a year after the judgment becomes dormant, and when it has been dormant for more than a year there is no power in the judge or court to revive it, although a proceeding to revive was begun before the year of dormancy had expired.
E. B Morgan, for plaintiffs in error.
M. E. Williams, for defendants in error.
The result of this proceeding depends on the authority of the court to make an order reviving a judgment without the consent of the judgment debtor more than a year after it had become dormant. The judgment in question was obtained before a justice of the peace November 26, 1892, and on it an execution was issued and returned on November 28, 1892. No other steps toward its enforcement, or to keep it alive, were taken, and it became dormant on November 28, 1897. A proceeding to revive the judgment was begun before a justice of the peace on November 10, 1898, and, there being some delay about providing security for costs, a bond for costs was not given until November 30, 1898, and the order and decision reviving the judgment were not made until December 16, 1898. Upon an appeal to the district court, it was ruled that the order of revivor had not been made within the statutory time and the proceeding was, therefore, dismissed.
A dormant judgment may be revived in the same manner as is prescribed for reviving actions before judgment, and neither can be revived without consent unless the order of revivor is made within one year after it could have been first made. (Civil Code, §§ 433-440; Gen. Stat. 1901, §§ 4883-4890.) Proceedings to revive an action and a judgment are substantially the same, and it is competent for a justice of the peace to revive the judgment rendered before him which had become dormant. (Israel v. Nichols, Shepard & Co., 37 Kan. 68, 14 P. 438.)
As revivor is purely statutory in its origin, it can be accomplished only in the mode and on the conditions prescribed by the statute. As will be seen, the statute explicitly provides that an order of revivor shall not be made without consent, unless within one year from the time it could have been first made. This is not a limitation upon the commencement of proceedings, nor upon the time within which to make application for an order, but it is a limitation upon the granting of the order itself. In some of the cases this distinction has not always been noted, but where the matter of time was involved it has been held that the courts. were without authority to revive actions or judgments more than one year after they have become dormant.
In Scroggs v. Tutt, 23 Kan. 181, it was held that a judgment could not be revived more than a year after dormancy except with consent, and that an order permitting revivor after the lapse of a year was error. In Tefft v. The Citizens' Bank, 36 Kan. 457, 13 P. 783, an attempt was made to revive the judgment, which had been dormant for more than a year. In that case the...
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State ex rel. Fidelity Nat. Bank & Trust Co. v. Buzard
...v. Falkenhainer, 321 Mo. 613; Tefft v. Citizens' Bank, 36 Kan. 457, 13 P. 783; Berkley v. Tootle, 62 Kan. 701, 64 P. 620; Reaves v. Long, 63 Kan. 700, 66 P. 1030; Steinbach v. Murphy, 70 Kan. 487, 78 P. Thompson v. Bristow, 244 P. 430; M. P. Railroad Co. v. Fox, 56 Neb. 746, 77 N.W. 130; Ho......
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State ex rel. Fidelity Natl. Bank & Trust v. Buzard, 38207.
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