The Merchants National Bank of Bismarck v. Braithwaite

• Decision Date: 12 May 1898
• Court: North Dakota Supreme Court

75 N.W. 244

7 N.D. 358

THE MERCHANTS NATIONAL BANK OF BISMARCK, N.D. v. WM. BRAITHWAITE, et al

Supreme Court of North Dakota

May 12, 1898

Appeal from District Court, Burleigh County; Winchester, J.

The plaintiff on the 15th day of April, 1886, recovered a judgment in the District Court of Burleigh County, Dakota Territory, against the defendants John A. McLean, and William Braithwaite for the sum of $ 973.35. The judgment was based upon a note on which Braithwaite was surety for McLean. Execution issued April 17th, 1890 and was returned wholly unsatisfied May 25th, 1891. On the 10th day of January, 1894 the Judge of the District Court made an order for the examination of Braithwaite in supplementary proceedings, and restraining him from disposing of any property. After disclosure made and on January 16th, 1895, an order was made appointing a receiver of Braithwaite's property. On the first day of February, 1896, the Judge of the District Court made an order discharging the receiver and cancelling his bond, and continuing the restraining order against Braithwaite. On the 3rd day of February, 1896, the court of its own motion made an order to show cause why a receiver should not be appointed in place of the one discharged, to which Braithwaite made answer on the 21st day of February 1896. Nothing further was done in the matter until April 1st 1897, when Braithwaite obtained an order to show cause why said proceedings should not be dismissed, because as he averred the Judge of the District Court of Burleigh County State of North Dakota, before whom the supplementary proceedings were instituted is not and never was the judge of the court in which the judgment was recovered, nor is he the successor of said judge. That since the institution of the supplementary proceedings, the judgment and all rights to enforce the same by action or otherwise have become barred by the statute of limitations. On May 17th, 1897, the order to show cause was discharged and defendants motion to dismiss the proceeding denied; A certificate of deposit placed in the hands of the clerk prior thereto upon direction of the court as a condition to the vacation of the the restraining order, was ordered endorsed and delivered to plaintiff in satisfaction of its judgment. Defendant Braithwaite appealed. Reversed.

Motion of defendant to set aside the supplementary proceedings granted. Order denying motion reversed.

Newton & Patterson, for appellant.

The jurisdiction and procedure in supplementary proceedings are entirely a creation of the statute. Clark v. Bengenthal, 8 N.W. 865. The proceedings are commenced by an order from the judge of the court. Section 5174, Complied Laws, section 5562, Revised Codes. The "judge of the court" clearly indicates the judge of the court where the judgment was rendered. Second Ward Bank v. Upmann, 12 Wis. 555; Miller v. Rossman, 15 How. Pr. 10; Biting v. Vanderberg, 17 How. Pr. 80. It is not a proceeding in court. Biting v. Venderberg, 17 How. Pr. 80; 2 Freeman Executions, § 397. The court in which the judgment in question was rendered viz: the Territorial District Court ceased to do business and went out of existence in November, 1889, two years after the rendition of this judgment. In the nature of things there could be no judge of a court that did not exist when the proceedings were commenced. By the provision of the constitution, section 85, all judicial power and jurisdiction in matters of judicial cognizance is vested exclusively in the courts and section 5174, Comp. Laws, in so far as it confers jurisdiction upon the judge of the court is repealed or abrogated. This provision of statute is embraced within the implied exception of section 2 of the schedule, and was not continued in force as a law of the state. Spencer Creek Water Co. v. Vallejo, 48 Cal. 70; Risser v. Hoyt, 18 N.W. 611. All causes pending in the territorial courts were transferred to the Federal or State Courts. Enab. Act. § 23; § § 567, 568, and 704, Rev. St. U. S. The judgment in question was not a cause pending at statehood. All records and papers of the territorial courts were subject to disposition by the United States. Benner v. Porter, 9 How. 235; 13 L.Ed. 119-124. Even if it should be held that the record of this judgment passed into the jurisdiction and possession of the State District Court, because of section 6 of the schedule,--it did not become a judgment or record of the state court. Hunt v. Palao, 4 How. 589; 11 L.Ed. 1115; Benner v. Porter, 9 How. 235. The statute of limitations when this judgment was rendered was twenty years. Sections 37, 52, and 53, Code Civ. Pro. 1878. By the Revised Codes which took effect January 1st, 1896, the right to commence an action upon a judgment is limited to ten years. Sections 5199, 5200, Revised Codes. This code was approved by the governor March 2nd, 1895, ten months before the code went into effect and thirteenth and one-half months before the time limited therein, as a bar had elapsed since the rendition of the judgment. The limitation of subdivision I, section 5200, Revised Codes, embraces domestic judgments. Mason v. Cronise, 20 Cal. 212. Statutes of limitation relate to the remedy, and the remedy is governed by the lex fori. McClung v. Silliman, 3 Pet. 270, 7 L.Ed. 676; Bank v. Donnelly, 8 Peters, 361; 8 L.Ed. 974; McElmoyle v. Cohen, 13 Pet. 312; 10 L.Ed. 177; Townsend v. Jemison, 13 L.Ed. 194; Bigelow v. Bigelow, 12 Metc. 268; Lincoln v. Battelle, 6 Wend. 475; 3 Am. and Eng. Enc. L. 583. The question of the period of limitation is one of policy or expediency on the part of the legislature. Falconer v. Dorman, 7 Wis. 338; Horbach v. Miller, 4 Neb. 31; O'Brien v. Gaslin, 30 N.W. 274; Hawkins v. Barney, 5 Pet. 457. This is true of causes of action already accrued, provided a reasonable time is allowed. Howell v. Howell, 15 Wis. 60; Koshkonong v. Burton, 14 Otto, 668; Bigelow v. Bemis, 2 Allen 496; Dale v. Frisby, 59 Ind. 520; Mitchell v. Clark, 110 U.S. 633; Terry v. Anderson, 5 Otto, 628 Holcombe v. Tracy, 2 Minn. 201; Smith v. Packard, 12 Wis. 412; Hyman v. Boyne, 83 Ill. 256; Barron v. Wayne, 37 Mich. 287; Sampson v. Sampson, 63 Me. 328; Dyer v. Gill, 32 Ark. 410; Gullotel v. Mayor, 55 How. Pr. 114; Parker v. Kane, 4 Wis. 1; Von Baumbach v. Bade, 9 Wis. 510; Eaton v. Supervisors, 40 Wis. 668; Baker v. Supervisors, 39 Wis. 444. In determining what is a reasonable time, account must be taken of the time between the passage of the limitation statute and the date of its taking effect. Holcombe v. Tracy, 2 Minn. 201; Stine v. Bennett, 13 Minn. 138; Hayward v. Judd, 4 Minn. 483; Smith v. Morrison, 22 Pick. 430; Hedger v. Rennaker, 3 Metc. (Ky.) 258; Burwell v. Tullis, 12 Minn. 578. This act took effect thirty days after the governors proclamation. In re Henricks, 5 N.D. 114. The ten year limitation did not expire until four and one-half months after the governors proclamation. This was a reasonable time. Auld v. Butcher, 2 Kan. 135; State v. Jones, 21 Md. 432; Stevens v. St. Louis, 43 Mo. 385; Adamson v. Davis, 47 Mo. 286; Kenyon v. Stewart, 44 Pa.St. 179; Koon v. Brown, 64 Pa.St. 55; O'Bannon v. Louisville, 8 Bush. 348; Lockhart v. Yuser, 2 Bush. 231; Smith v. Morrison, 22 Pick. 430; Bigelow v. Bemis, 2 Allan, 496. Supplementary proceedings after execution returned are entirely ancillary. Barker v. Dayton, 28 Wis. 367; Bank v. Spencer, 15 How. Pr. 415; Dresser v. Van Pelt, 15 How. Pr. 19. The remedy by execution though not named in the statute falls within the statutory bar to a remedy by action. Barron v. Wayne, 37 Mich. 287; White v. Moore, 38 S.W. 505; Peters v. Vawter, 10 Mont. 201. The same is true in regard to supplementary proceedings. Newell v. Dart, 9 N.W. 732; Dole v. Wilson, 40 N.W. 161; Young v. Bemer, 4 Barb. 442; Jerome v. Williams, 13 Mich. 521; P. & C. R. Co. v. Byers, 32 Pa.St. 22; Milber v. Bartlett, 106 Mo. 381; Isaac v. Swift, 10 Cal. 71. The order appointing receiver not having been recorded as required was abortive. Section 5599, Rev. Codes; Dubois v. Cassidy, 75 N.Y. 298; Manning v. Evens, 19 Hun. 500; Wing v. Disse, 15 Hun. 190; Hayes v. Buckley, 53 How. Pr. 173-187. The order of court directing the payment of the certificate of deposit to plaintiff was without authority of law. Pattee v. Low, 16 How. Pr. 549; Christenson v. Tostevin, 53 N.W. 461.

Boucher & Philbrick, (Cochrane & Feetham, of counsel,) for respondent.

Statutes limiting the time within which proceedings may be commenced cannot affect proceedings already begun. Driggs v. Williams, 15 Abb. Pr. 477; Ludeman v. Hirth, 55 N.W. 449; Palen v. Bushnell, 4 N.Y.S. 63. A supplementary proceeding is not an action upon a judgment within the meaning of the statute limiting to ten years, the time within which an action upon a judgment may be commenced. Section 5200, Rev. Codes, Rose v. Henry, 37 Hun. 397; Kincaid v. Richardson, 25 Hun. 237; 9 Abb. New Cases, 315; Bolt v. Hauser, 10 N.Y.S. 397; Green v. Hauser, 9 N.Y.S. 622; Palen v. Bushnell, 4 N.Y.S. 63; Wintermire v. Westover, 14 N.Y. 16; Miller v. Rossman, 15 How. Pr. 10; Owen v. Dubignac; 9 Abb. Pr. 184; Bolt v. Hauser, 11 N.Y.S. 366; 57 Hun. 567; Johnson v. Ry. Co., 54 N.Y. 416; Herder v. Collier, 6 N.Y.S. 513; Campbell v. Ebben, 2 N.Y. 615; Woodward v. Hall, 75 Wis. 406, 44 N.W. 114.

OPINION

CORLISS, C. J.

This appeal is from two orders. One is an order denying defendant's motion to set aside certain orders in proceedings supplementary to execution, and granting to the plaintiff certain relief, not necessary to be now specified. The other order required defendant to deposit in court a sum of money as a condition of vacating a restraining order issued in such proceedings. The sweeping assertion is made by counsel for defendant that the proceedings and all orders therein...