St. Louis Type Foundry Co. v. Jackson

• Decision Date: 12 April 1895
• Parties: St. Louis Type Foundry Company v. Jackson, Appellant
• Court: Missouri Supreme Court

30 S.W. 521

128 Mo. 119

St. Louis Type Foundry Company v. Jackson, Appellant

Supreme Court of Missouri, Second Division

April 12, 1895

Appeal from Cass Circuit Court. -- Hon. W. W. Wood, Judge.

Reversed.

Noah M Givan for appellant.

(1) The judgment sued on became dormant, by the laws of Kansas section 445, on July 12, 1880, five years after it was rendered; and within one year thereafter, more than eleven years before this suit was brought, it became dead, and could not be revived. (Secs. 440, 433, 434.) Angell v Martin, 24 Kan. 334; Tibbetts v. Deck, 41 Kan. 492; Tefft v. Bank, 36 Kan. 457; Chapman v. Chapman, 48 Kan. 636; State v. McArthur, 5 Kan. 283; Burns v. Simpson, 9 Kan. 666; Mawhinney v. Doane, 40 Kan. 676; Scroggs v. Tutt, 23 Kan. 181; Tutt v. Ferguson, 13 Kan. 53; Gamble v. Wood, 27 Kan. 536; Barker v. Hammer, 31 Kan. 325; U. S. ex rel. v. Twp. Oswego, 28 F. 55; Dempsey v. Twp. Oswego, 51 F. 99. (2) The judgment sued on has no higher or greater effect in this state, under the constitution and laws of the United States, than it has in the state of Kansas, where rendered, under the statutes and procedure of that state. Const. U.S., sec. 1, art. 4; Law of Congress, secs. 905, 906 (R. S., p. 2068); Freeman on Judgments, secs. 221, 575, 576; Suydam v. Barber, 18 N.Y. 468; Wood v. Watkinson, 17 Conn. 500; Fletcher v. Ferrell, 9 Dana, 372; McJilton v. Love, 13 Ill. 486; Cook v. Thornhill, 13 Tex. 293; Griffin v. Eaton, 27 Ill. 379; Swift v. Stark, 2 Oregon, 97; Kellum v. Toms, 38 Wis. 598; Brown v. Parker, 28 Wis. 21; Hanley v. Donahue, 116 U.S. 7; Remand v. Abbott, 116 U.S. 277; 12 Am. and Eng. Encyclopedia of Law, 148o, and note 2; Baker v. Stonebraker, 36 Mo. 338; Holt v. Johnson, 50 Mo.App. 373. (3) Any defense to the judgment sued on, going to the merits and not to the remedy alone, that is good in the state where it was rendered, is good here. 12 Am. and Eng. Encyclopedia of Law, 149a, and note 2; Eaton v. Hasty, 6 Neb. 419; Hampton v. McConnell, 3 Wheat. 234; Bank v. Wheeler, 28 Conn. 433; Lawrence v. Jarvis, 32 Ill. 304; Baker v. Stonebraker, 36 Mo. 338; Holt v. Johnson, 50 Mo.App. 373.

S. W. Hoover and Wm. L. Jarrott for respondent.

(1) An action can be instituted on a judgment like any other debt. The court did not err in rendering judgment for the plaintiff, for the reason that the statute of limitations of Kansas does not extinguish the debt. McMerty v. Morrison, 62 Mo. 140; Stewart v. LeRoy, 11 Wall. 344; Williams v. Railroad, 123 Mo. 573; Stewart v. Kahn, 11 Wall. 494. The statutes of limitation referred to affect the remedy only, and do not extinguish the right, and are so construed by the courts of this state and of Kansas. Williams v. Railroad, supra; Carson v. Hunter, 46 Mo. 467; McMerty v. Morrison, 62 Mo. 140; Elder v. Dyer, 26 Kan. 604; Sibert v. Wilder, 16 Kan. 176. (2) But if said statutes were to be construed as statutes extinguishing the right, still defendant's answer does not bring it within the distinction as made by Judge Story between statutes which affect the remedy and those affecting the right, because his qualifications of that rule required that both parties should continue to reside in the state where the law extinguishing the right of action prevails during the full period of limitations, so that it could act both upon the parties and the cause of action. Williams v. Railroad, 123 Mo. 573. (3) The case at bar is to be determined, so far as the statutes of limitations are concerned, by the statutes of Missouri and not of Kansas. Carson v. Hunter, 46 Mo. 467; Sterling v. Winter, 80 Mo. 141. Although the action may be barred by the statutes of Kansas, if not barred here, it can not be maintained in our court, unless the statute of the state of Kansas be one not of repose, but presumption of payment. McMerty v. Morrison, supra; Lyman v. Campbell, 34 Mo.App. 213; Christmas v. Russell, 5 Wallace, 290; Bank v. Dalton, 9 Howard, 532. The supreme court of Kansas holds that the statute pleaded is one of repose, but not one of presumption of payment. Elder v. Dyer, 26 Kan. 604; Pracht v. McNee, 40 Kan. 1; Freeman v. Hill, 45 Kan. 535; Keith v. Keith, 26 Kan. 40. (4) Under the statute of this state and the common law, the judgment sued on had twenty years to run from the date of its rendition, and was not barred at the time this suit was instituted. Freeman on Judgments [3 Ed.], sec. 464; R. S. Mo., sec. 6796. (5) "The statute of limitations to be applied is the statute of the state where suit is brought on the judgment, not that of the state where the judgment was rendered." Black on Judgments, sec. 892; Gulick v. Yoder, 13 N. J. Law, 68; Miller v. Brenham, 68 N.Y. 83; Lincoln v. Battell, 6 Wend. 475; Ruggles v. Keeler, 3 Johns. 253; Power v. Hathaway, 43 Barb., 214; Toulandon v. Lachenmeyer, 37 How. 145.

OPINION

Burgess, J.

On the twelfth day of July, 1875, plaintiff recovered a judgment against the defendant in the district court of Wyandotte county, Kansas, on several promissory notes, amounting in the aggregate to the sum of $ 782.37. This suit was instituted upon that judgment, on the twenty-fifth day of August, 1892, in the circuit court of Cass county, Missouri, defendant being at that time temporarily in that county, his home being in said Wyandotte county prior to, and ever since the rendition of the original judgment. The defense relied upon was the statute of limitations, the answer alleging that the judgment had never been revived or kept alive by the issuance of execution or other process thereon, and had become extinguished and void under the laws of the state of Kansas. The trial resulted in a judgment for plaintiff in the sum of $ 2,189.39, and defendant appealed.

The sections of the Kansas statute (2 Gen. Stat. 1889, chap. 80), relied upon by defendant as sustaining his defense, and which were read in evidence by him, are as follows:

"Section 445. If execution shall not be sued out within five years from the date of any judgment that now is, or may hereafter be rendered, in any court of record in this state, or if five years shall have intervened between the date of the last execution issued on such judgment and the time of suing out another writ of execution thereon, such judgment shall become dormant, and shall cease to operate as a lien on the estate of the judgment debtor."

"Section 440. If a judgment become dormant, it may be revived in the same manner as is prescribed for reviving actions before judgment."

"Section 433. An order to revive an action against the representatives or successor of a defendant shall not be made without the consent of such representatives or successor, unless in one year from the time it could have been first made."

"Section 434. An order to revive an action, in the names of the representatives or successor of a plaintiff, may be made forthwith, but shall not be made without the consent of the defendant, after the expiration of one year from the time the order might have been first made; but where the defendant shall also have died, or his powers have ceased, in the meantime, the order of revivor, on both sides, may be made in the period limited in the last section."

"Section 18. Civil actions, other than for the recovery of real property, can only be brought within the following periods, after the cause of action shall have accrued, and not afterward. First. Within five years: An action upon any agreement, contract or promise in writing * * *."

"Section 25. When a right of action is barred by the provision of any statute, it shall be unavailable, either as a cause of action or ground of defense."

The judgment sued on was never revived, no execution was ever issued on it, nor was any part of it ever paid.

In order to bring the case within the meaning of section 18, quoted, which prescribes that an action upon any agreement, contract or promise in writing, must be brought within five years, it must be held that a judgment is a contract of record.

In passing upon this question in Burnes v. Simpson, 9 Kan. 658, it was said that a "judgment is a contract, and is a contract by speciality." 2 Black-stone's Commentaries, 465, says a judgment is "a contract of the highest nature, being established by the sentence of a court of judicature." 1 Story on Contracts, sec. 2; 1 Chitty on Contracts, 2; 1 Parsons on Contracts, 8.

The judgment being a contract, and more than five years having elapsed after its rendition before the commencement of this suit, during which time no execution was issued thereon, or steps taken to revive it, was it barred and the right extinguished by the statute of limitations of Kansas?

If the right was not extinguished by the laws of that state, then the action may be maintained in this state, as, by the Missouri statute, no legal presumption of the payment of a judgment of a court of record arises until the expiration of twenty years from the time of its rendition, and suit may be brought thereon within that time after the expiration of ten years from the time the judgment is rendered.

In Angell v. Martin, 24 Kan. 334, Brewer, J., in speaking for the court, said: "A party may, by the issue of executions every five years, keep a judgment alive indefinitely. It remains in force without execution for five years, and the plaintiff may revive it any time within one year thereafter, so that practically a plaintiff may neglect his judgment for six years, lacking a day, and then revive and put it in force for five years more. And, if a party neglects his judgment for six years, he has little cause of complaint, if the law says to him, "you have slept upon your rights too long, and public policy requires that claims so old should be considered barred. If he had commenced an action upon this judgment, ...