Tefft v. Citizens' Bank

• Citation: 36 Kan. 457,13 P. 783
• Parties: H. K. TEFFT v. THE CITIZENS' BANK
• Decision Date: 06 May 1887
• Court: United States State Supreme Court of Kansas

13 P. 783

36 Kan. 457

H. K. TEFFT v. THE CITIZENS' BANK

Supreme Court of Kansas

May 6, 1887

Error from Shawnee District Court.

ON August 6, 1884, the district court, over the objection of H K. Tefft, made an order reviving a certain judgment. To reverse that order, Tefft brings the case here. The opinion states the material facts.

Judgment reversed.

James J. Hitt, G. C. Clemens, and H. C. Root, for plaintiff in error.

W. P Douthitt, for defendant in error.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.:

On June 1, 1878, a judgment was recovered in the district court of Shawnee county by the Citizens' Bank against H. K. Tefft, E. Tefft and D. B. Burdick, for $ 1,595.95, together with the costs of the action. This judgment was never satisfied, nor was any execution ever issued upon the same. On May 28, 1884, a motion was filed by the Citizens' Bank, asking that the judgment be revived. A notice was served the same day on H. K. Tefft, notifying him that the hearing of the motion to revive the judgment would be brought on for hearing before the court on the 28th day of June, or as soon thereafter as opportunity was given. On the 6th day of August, 1884, the court, over the objection of H. K. Tefft, made an order reviving the judgment. He brings the present proceeding to reverse that order, contending that it was beyond the power of the court to revive the judgment at that time without his consent. In § 433 of the code it is enacted that --

"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."

And by § 440 it is provided that --

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

Already the court has held that time is a part of the manner of revivor, and therefore that the limitations prescribed by § 433 apply to proceedings for the revival of a dormant judgment. (Scroggs v. Tutt, 23 Kan 181; Angell v. Martin, 24 id. 334.) That section is explicit in its terms, and plainly limits the time within which an order of revivor may be made without consent, to one year after it could have been first made. It will be observed that more than six years and two months elapsed after the rendition of the judgment and before the order of revivor was made. The judgment became dormant on June 1, 1883, and the attempted revivor was not made for more than fourteen months after that date. The motion to revive was filed and notice given on May 28, 1884, three days prior to the expiration of the year, but the notice specifically stated that the order would be applied for on June 28, 1884. The filing of the motion and the giving of the notice are not sufficient to bring the case...