Sweetser v. Fox

• Decision Date: 09 May 1913
• Docket Number: 2434
• Citation: 134 P. 599,43 Utah 40
• Court: Utah Supreme Court
• Parties: SWEETSER et al. v. FOX et al

134 P. 599

43 Utah 40

SWEETSER et al. v. FOX et al

No. 2434

Supreme Court of Utah

May 9, 1913

APPEAL from District Court, Third District; Hon. M. L. Ritchie Judge.

Action by George B. Sweetser and others, co-partners, doing business as Sweetser, Pembrook & Company, against Jesse W. Fox, Jr. and others.

Judgment for plaintiffs. Defendants appeal.

REVERSED AND REMANDED, WITH DIRECTIONS TO GRANT A NEW TRIAL.

Burton & Johnson, for appellants.

Dey &amp Hoppaugh, for respondents.

FRICK, J. McCARTY, C. J., and STRAUP, J., concur.

OPINION

FRICK, J.

On the 29th day of December, 1897, all of the plaintiffs above named, as partners doing business as such, obtained judgment in the circuit Court of the United States in and for the district of Utah against all of the defendants above named. On the 12th day of June, 1906, an action in the name of all of the plaintiffs as partners was commenced on the judgment aforesaid against all of the defendants. Separate demurrers were filed by the defendants, which were overruled, and they then filed separate answers in which the only defense that is material here was that the action was barred by the provisions of Comp. Laws 1907, section 2874, which provides:

"An action upon a judgment or decree of any court of the United States, or of any state or territory within the United States," must be commenced "within eight years." Plaintiffs replied that the defendant Christopherson was absent from the state of Utah for "more than one year after said cause of action had accrued and prior to the commencement of this action."

Nearly two years after this action was commenced all of the plaintiffs above named, except George D. Sweetser and J. Howard Sweetser, filed an application in which they set forth that at and prior to the time the judgment upon which this action is based was obtained all of the plaintiffs were copartners and were doing business as such, and that thereafter, and before this action was commenced, the said George D. Sweetser and J. Howard Sweetser died leaving the other four as the surviving members of the said copartnership, and further alleged that the four named are the sole owners of said judgment as surviving partners as aforesaid. Pursuant to the foregoing application they asked that the names of the first two be stricken out and that the action proceed in the name of the four surviving partners as plaintiffs. The court granted the application and permitted the action to proceed in the name of the four surviving partners, who, the court found, were the real and only parties in interest. Notwithstanding that order, all of the names of the original plaintiffs are retained in the title of the action, even in this court.

The defendants insist that the district court erred in allowing the application aforesaid. Nothing is made to appear wherein the defendants are in any way prejudiced by striking out the two names as aforesaid. If it were assumed, therefore, that the court had committed technical error in striking out the names, yet, as there is no claim nor evidence of prejudice, the judgment cannot be reversed upon the ground just stated.

But we can see no reason whatever why, under the facts disclosed by this record, the district court was not justified in striking out the names of the two deceased partners as plaintiffs and in permitting the action to proceed to judgment in the names of the other surviving partners. This assignment, therefore, must be overruled.

Proceeding now to a consideration of the only serious question in the case, namely, the defense that the action is barred by our statute of limitations, we remark that the court found that the action in question was commenced 8 years and 165 days after the entry of the judgment upon which it is based, and that the defendant Christopherson was absent from the state of Utah during that time for "a period of not more than 164 days." The court, however, held that the action was not barred and entered judgment against all of the defendants for the full amount of the judgment, including interest. The defendants appeal and insist that the district court erred in holding that the action upon the judgment was not barred by the provisions of he statute we have referred to and in rendering judgment against them. Upon the other hand, plaintiffs contend that the action is not barred because of what is contained in Comp. Laws 1907, section 3490, which provides:

"An action is deemed to be pending from the time of its commencement until its final determination upon appeal, or until the time for appeal has passed, unless the judgment is sooner satisfied."

That section has been in force in this state continuously since some time prior to 1888. It constituted section 3706 of Comp. Laws 1888, and was thereafter carried into the Revised Statutes of 1898 as section 3490. The section is an exact copy of section 1049 of the California Code of Civil Procedure.

It is conceded that the judgment in question was not appealed and that no motion for a new trial was ever filed. In other words, it is conceded that the judgment was never assailed in any way by any one. Plaintiffs contend that notwithstanding that fact the judgment did not become final until the time for an appeal had passed, namely, until six months from the time of its entry, while the defendants insist that the judgment became a final and enforceable judgment immediately upon being rendered and entered as provided by law, and hence 8 years, plus 165 days, had elapsed when this action was commenced. The question that we must determine, therefore, is, When did the statute of limitations begin to run on the judgment in question?

Counsel for plaintiffs contend that the foregoing question is determined in their favor by the Supreme Court of California in the case of Feeney v. Hinckley, 134 Cal. 467, 66 P. 580, 86 Am. St. Rep. 290, and that in view that our statute (section 3490, supra) is a copy of the California statute upon which the California Supreme Court bases its decision in the case just referred to we should follow that decision. If the case just referred to is to be followed, then this opinion should end right here, since no distinction can be drawn between the principle involved in this case and in the California case referred to. The case of Feeney v. Hinckley, supra, was decided in November, 1901, many years after section 3490, supra, was in force in Utah. We are therefore not confronted with a situation where a statute from another state is adopted after the same had been authoritatively construed and applied by the courts of the latter. Notwithstanding this fact, we were lothe to disagree with the conclusion reached by the Supreme Court of California and have done so only upon mature deliberation and after having carefully considered both the reasoning and authorities upon which the decision in Feeney v. Hinckley is said to be based. In our judgment the decision in that case is based upon what is assumed to be the law rather than upon what the law actually is.

The decision seems to be based upon the conception that because the statute (section 3490) provides that an action should be deemed pending until the appeal, if one is taken, be determined, or, if no appeal be taken, then until the time for an appeal has expired, for that reason a judgment is not to be deemed final for the purpose of setting in motion the statute of limitations until the time has elapsed within which an appeal can be taken, and that if it were held otherwise the judgment creditor would not have the full time given by the statute of limitations in which to bring an action upon a judgment. In arriving at such a conclusion, the California Supreme Court, we think, committed at least two errors. The first one consisted in assuming that section 3490 in some way greatly changed or affected the rule prevailing at common law with regard to when actions were deemed pending.

The rule in that regard in force at common law is well stated by the Court of Appeals of New York in the case of Wegman v. Childs, 41 N.Y. 159, where it is stated thus:

"An action is pending in a court, though judgment has been recovered therein, as long as such judgment remains unsatisfied."

To the same effect are Gates v. Newman, 18 Ind.App. 392, 46 N.E. 654; Ulshafer v. Stewart, 71 Pa. 170; Wright v. Nostrand, 94 N.Y. 31; Chapin v. James, 11 R.I. 86, 23 Am. Rep. 412; Ex parte Howland, 3 Okla. Crim. 142, 104 P. 927, Ann. Cas. 1912A, 840; Day v. Holland, 15 Ore. 464, 15 P. 855; Shirley v. Burch, 16 Ore. 1, 18 P. 344; 6 Words and Phrases, 5277.

Section 3490, supra, therefore, belongs to that class of statutes wherein it was sought to declare and make certain an existing rule of practice or procedure rather than to create a new one. Moreover, when other provisions of the Code, which have a bearing upon the subject, are kept in mind and are given proper force, it, in our judgment, is conclusive that neither in adopting the rule at common law nor by what is said in the statute was it intended to declare that, although actions be pending after judgment, they are necessarily pending for all purposes. In our judgment actions remain pending after judgment only for the purpose of enforcing them and to institute the proceeding provided by law to reverse or to modify them. For the purpose of enforcing the judgment, it is just as much final immediately after its rendition and entry in the court of original jurisdiction, unless it is expressly otherwise provided by some statute, as it is after an appeal is terminated. For the purpose of res judicata or estoppel this may, however, not be so. If this distinction be kept in mind, no difficulty will be encountered in applying the remedies incident to the enforcement...