Reed v. Flood

• Decision Date: 07 July 1924
• Docket Number: 10811.
• Parties: REED et al. v. FLOOD et al.
• Court: Colorado Supreme Court

230 P. 108

76 Colo. 139

REED et al. v. FLOOD et al.

No. 10811.

Supreme Court of Colorado

July 7, 1924

Rehearing Denied Nov. 10, 1924.

Department 3.

Error to District Court, City and County of Denver; Julian H Moore, Judge.

Action by A. H. Flood and another against George L. Reed and another. Judgment for plaintiffs, and defendants bring error.

Affirmed.

Tolles & Cobbey, of Denver (Rice W. Means, City Atty., of Denver, of counsel), for plaintiffs in error.

George A. Carlson and W. R. Ramsey, both of Denver, for defendants in error.

CAMPBELL J.

The plaintiff Reed recovered a judgment in the justice court in May, 1910, against the defendant Flood. Within three years thereafter he filed a transcript of the judgment in the office of the clerk of the district court. In July, 1923 more than 10 years after the rendition of the judgment, Reed caused an execution on this judgment to be issued out of the district court, and the sheriff thereunder levied upon real estate in the county belonging to the defendant Flood. Flood thereupon brought an action in equity to enjoin the threatened sale, and, upon final hearing, the court made permanent the temporary injunction theretofore issued, ordered the judgment to be canceled, and satisfied and restrained further proceeding under it.

The question for decision is whether an execution may be issued on a judgment of a justice of the peace which has been filed in the office of the clerk of the district court after an action on the judgment is barred by the statute of limitation. No discussion of the legal proposition is necessary, for by a recent decision of this court it was decided that under such a state of facts the execution may not issue. Sundin v. Frost, 71 Colo. 367, 206 P. 1071. Plaintiff, however, cites cases from other jurisdictions and Brown v. Bell, 46 Colo. 163, 103 P. 380, 23 L.R.A. (N. S.) 1096, 133 Am.St.Rep. 54, upon which he relies, and which he says distinguish this from the Sundin Case. The difference between the Brown-Bell Case and the Sundin Case is that in the former the transcript of the justice court judgment was filed in the district court within a year after its rendition, and the judgment was then a live one, while in the Sundin Case the judgment was not filed in the district court until about 10 years after its rendition. In both cases execution was issued after the bar to an action on the judgment had fallen. The reasoning of...