Snell v. Rue

• Decision Date: 20 October 1904
• Citation: 101 N.W. 10,72 Neb. 571
• Parties: SNELL v. RUE.
• Court: Nebraska Supreme Court

72 Neb. 571

101 N.W. 10

SNELL

v.RUE.

Supreme Court of Nebraska.

Oct. 20, 1904.

Syllabus by the Court.

1. The provisions of section 10 and section 16 of the Code of Civil Procedure, known as the “Statute of Limitations,” do not apply to actions upon domestic judgments.

Commissioners' Opinion. Error to District Court, Nemaha County; Babcock, Judge.

Action by Emma Snell against Lewis Rue. Judgment for defendant, and plaintiff brings error. Reversed.J. S. McCarty and H. A. Lambert, for plaintiff in error.

S. P. Davidson, for defendant in error.

LETTON, C.

The question presented in this case is whether or not the provisions of the statute of limitations of this state apply to an action upon a dormant domestic judgment. The plaintiff in error contends that the provisions of the statute do not apply to an action brought in this state upon such a judgment, while, on the other hand, the defendant in error contends that the provisions of section 16 of the Code of Civil Procedure, which provide “an action not hereinbefore provided for can only be brought within four years after the cause of action shall have accrued,” apply. The judgment sued upon was rendered in 1897, and was dormant at the time this action was commenced. The argument of the plaintiff in error substantially is that, since an execution may issue upon the judgment for a period of five years after its rendition, it could not have been the intention of the Legislature to bar the bringing of an action upon the same claim while it was still an enforceable judgment, and that since the Code was enacted as a whole the sections which provide that a judgment shall not be a lien upon real estate after the expiration of five years from the rendition thereof, unless an execution is issued, and which provide for revivor of dormant judgments, and the sections of the statute of limitations which provide that an action may be brought upon foreign judgments within five years, are to be construed together, and make it plain and obvious that the Legislature never intended that the statute of limitations should apply to domestic judgments. On the other hand, defendant in error insists that the provisions of section 16 are broad and sweeping in their terms, and embrace actions of every nature other than those specifically mentioned.

In examining this question we have been able to receive but little light from adjudications in other states, the statutes of limitation of the several states being so different in their provisions that the decisions in each state are largely determined and governed by the local statute. The provisions of the Code of Civil Procedure of the state of Ohio with reference to the lien of judgments, the time at which they became dormant, and the limitation of actions upon the same, were the same as those of this state are now, in 1864, when the case of Tyler's Ex'rs v. Winslow, 15 Ohio St. 364, was decided by the Supreme Court of that state, except that our statute limits the time for bringing an action upon a foreign judgment to five years, while no mention was made in the Ohio statute of actions upon foreign judgments. In that case it was contended that a domestic judgment was a “specialty” and became dormant within 15 years, as provided by the statute. The court held, however, that a domestic judgment was not a specialty. It was further contended that the four-years limitation upon the bringing of all actions not specifically enumerated in the statute applied. In this connection, however, the Ohio court says: “A domestic judgment is not embraced in the limitation of four years provided in the last clause of the section, for the obvious reason, among others, that by a contemporaneous act, taking effect on the same day with this, it was provided that such judgments should not become dormant until after five years. The court, however, are of opinion that the judgments of the courts of this state are not subject to any of the provisions of the section under consideration. By this section, actions are limited to the specific period of each, ‘after the cause of such action shall have accrued,’ or ‘after such right of action shall have accrued.’ We think that a fair construction of this language, according to its ordinary import, excludes domestic judgments, and was intended by the Legislature to apply to claims that accrue by maturity, or arise by the happening of events that give a right of action as usually understood. It...