Stern v. Bates.

• Decision Date: 02 October 1897
• Citation: 9 N.M. 286,50 P. 325
• Parties: STERN et al.v.BATES.
• Court: New Mexico Supreme Court

9 N.M. 286

50 P. 325

STERN et al.

v.BATES.

Supreme Court of the Territory of New Mexico.

Oct. 2, 1897.

Error to district court, Bernalillo county; before Justice N. C. Collier.

Action by Stern & Krauss against Paul T. Bates on a foreign judgment. There was a judgment in favor of defendant, and plaintiffs bring error. Affirmed.

The plaintiffs in error filed this suit as an action in debt on the 31st day of October, 1896, in the district court for Bernalillo county, and alleged in their declaration that they were partners doing business under the firm name of Stern & Krauss, and that they recovered a judgment on the 4th day of March, 1888, in the city court of Birmingham, county of Jefferson, and state of Alabama, against this defendant, Paul T. Bates, and R. M. Bates, then partners doing business under the firm name and style of Bates Bros., in the sum of $993.81, no part of which said judgment has ever been paid; that said defendant, Paul T. Bates, was at the time of the bringing of this suit a resident of said Bernalillo county, N. M., but the residence of the plaintiffs, Stern & Krauss, is not disclosed in the declaration. The defendant appeared, and pleaded: First, the general issue; second, nul tiel record; and, third, the statute of limitations of seven years. The plaintiffs joined issues as to the first and second pleas, and demurred as to the third plea. The demurrer was overruled by the court, and then plaintiffs filed their replication as to the third plea; and alleged: First, that at the time the cause of action accrued to them the defendant was out of this territory, and that he afterwards, during the year 1895, came into this territory, and was for the first time within the jurisdiction of this court since the cause of action accrued, and that they commenced their suit within seven years next after defendant's arrival into this territory after the accrual of their said cause of action; and, second, that immediately after the cause of action accrued the defendant removed from this territory, and did not return until the ___ day of ___, 1895, during all of which time the defendant was a nonresident of this territory, and that said suit was begun within seven years after the cause of action accrued to them, excluding the time the defendant was such nonresident. The defendant filed a motion to strike from the files this replication on the ground of irrelevancy, which motion was sustained; and, the plaintiffs electing to stand upon their pleadings, judgment was entered for defendant. The case is here upon plaintiffs' errors assigned to the record.

Comp.Laws 1884, § 1868, providing that if, after a cause of action accrues, a defendant removes from the territory, the time during which he shall be a nonresident shall not be included in computing any of the periods of limitation, applies only to domestic judgments, so far as it affects actions on judgments.

A. B. McMillen, for plaintiffs in error.

Johnston & Finical, for defendant in error.

LAUGHLIN, J. (after stating the facts).

This is an action in debt, brought upon a judgment obtained by the plaintiffs in error against the defendant in error on the 4th day of March, 1888, in the city court of Birmingham, in the county of Jefferson, in the state of Alabama, for the sum of $993.81. This action was commenced on the 31st day of October, 1896, in the district court for Bernalillo county, this territory. The defendant in error pleaded the statute of limitations as a bar to the cause of action, and relies upon that statute as a complete defense, which is as follows: “Sec. 2. Actions founded upon any judgment of any court of the territory of New Mexico may be brought within seven years from the rendition of such judgment, and not afterwards, and actions founded upon any judgment of any court of record of any other territory or state of the United States, or of the federal courts, may be brought within seven years from and after the rendition of such judgment, and not afterwards: provided, that actions may be brought upon any existing judgment which, but for this proviso, would be barred within one year from and after the passage of this act, and not afterwards; and all actions upon such judgments not commenced within the time limited by this act shall be forever barred.” Laws 1891, p. 104. This statute was approved February 24, 1891, and was adopted in lieu of section 1861, Comp. Laws 1884, which is as follows: “Sec. 1861. Actions upon any judgment of any court of record of any state or territory of the United States, or the federal courts of the United States, within fifteen years” after the cause of action accrues. It will be observed that there is no limitation placed upon judgments obtained in New Mexico until by the act of 1891, supra, and under the proviso in the statute of 1891 suits might be brought upon any then existing judgment within one year from and after its passage; that is, at any time before the 24th day of February, 1892, and not afterwards. This proviso limited the time for bringing actions upon all judgments then existing, whether barred or not, to one year from and after the date of its passage, and was intended to apply to then existing judgments, whether foreign or domestic; and the one year's time given within which to commence actions upon then existing judgments was intended to remove any constitutional objections to the act, and it gave...