The Schuyler County Bank v. Bradbury

• Decision Date: 11 January 1896
• Docket Number: 8050
• Citation: 43 P. 254,56 Kan. 355
• Parties: THE SCHUYLER COUNTY BANK, OF LANCASTER, Mo., v. MOSES T. BRADBURY
• Court: Kansas Supreme Court

43 P. 254

56 Kan. 355

THE SCHUYLER COUNTY BANK, OF LANCASTER, Mo., v. MOSES T. BRADBURY

No. 8050

Supreme Court of Kansas

January 11, 1896

Decided January, 1896.

Error from Decatur District Court.

ACTION by The Schuyler County Bank, of Lancaster, Mo., against Moses T. Bradbury. Judgment for defendant. Plaintiff comes to this court. The opinion, filed January 11, 1896, states the case.

Judgment affirmed.

E. E Gibbens, and A. J. King, for plaintiff in error.

Bertram & McElroy, for defendant in error.

MARTIN C. J. All the Justices concurring.

OPINION

MARTIN, C. J.:

On September 10, 1884, the plaintiff recovered a judgment against Moses T. Bradbury in the district court of Jewell county, Kansas, for $ 3,161.53, together with interest and costs. No execution was issued thereon. The plaintiff, on August 25, 1890, commenced an action in the district court of Decatur county against Bradbury and others in the nature of a creditor's bill, and for the revivor of said judgment. Demurrers having been sustained to the petition and the first amended petition respectively, the plaintiff filed its second amended petition, March 31, 1891 dropping out all the parties except Bradbury, pleading said judgment of the district court of Jewell county, and praying a judgment thereon. The defendant pleaded, among other things, the bar of the five-years statute of limitations. Whether a dormant judgment rendered in one county may be revived by action in another is a question suggested, but not raised, by the record. The plaintiff's right of action was barred by the provisions of section 18 of the code of civil procedure, it not being claimed that either party was under any disability, nor that the defendant was a non-resident of or absent from the state at any time between September 10, 1884, and August 25, 1890. (Mawhinney v. Doane, 40 Kan. 676, 17 P. 44.) The plaintiff relies upon Baker v. Hummer, 31 Kan. 325, 2 P. 808, which holds that an action may be maintained on a dormant domestic judgment in this state if commenced within one year after dormancy; but in that case the action was not barred by the statute of limitations, for the judgment was rendered March 25, 1876, and in the following autumn the defendants removed from Kansas to Illinois, and were continuously absent from this state from that time forth to the commencement of the action. The only difficulty about that judgment was that it had become...