Union Nat. Bank of Grand Forks v. Ryan

• Decision Date: 28 June 1912
• Citation: 137 N.W. 449,23 N.D. 482
• Court: North Dakota Supreme Court

137 N.W. 449

23 N.D. 482

UNION NAT. BANK of Grand Forks v. RYAN

Supreme Court of North Dakota

June 28, 1912

Appeal by defendant from a judgment of the District Court for Pembina County; Burr, J., in plaintiff's favor in an action for the renewal of a domestic money judgment held by plaintiff against defendant.

Affirmed.

Guy C H. Corliss, for appellant.

After ten years the judgment is absolutely extinguished for all purposes. Merchants Nat. Bank v. Braithwaite, 7 N.D 358, 66 Am. St. Rep. 653, 75 N.W. 244; Lamberton v Grant, 94 Me. 508, 80 Am. St. Rep. 415, 48 A. 127; Berkley v. Tootle, 163 Mo. 584, 85 Am. St. Rep. 592 63 S.W. 681; St. Louis Type Foundry Co. v. Jackson, 128 Mo. 119, 30 S.W. 521; Dempsey v. Oswego Twp. 2 C. C. A. 110, 4 U. S. App. 416, 51 F. 97; Gaines v. Grunewald, 102 Minn. 245, 113 N.W. 450; Brown v. Dooley, 95 Minn. 146, 103 N.W. 894; Davis v. Munie, 235 Ill. 620, 85 N.E. 943; Smalley v. Bowling, 64 Kan. 818, 68 P. 630; Beadles v. Fry, 15 Okla. 428, 2 L.R.A.(N.S.) 855, 82 P. 1041.

The time shall continue to run so long as the plaintiff can fully protect his rights, and therefore, if he can fully protect his rights despite the absence of the defendant from the state, the statute will run on despite such absence. Smalley v. Bowling, 64 Kan. 818, 68 P. 630; McFarland v. Cornwell, 151 N.C. 428, 66 S.E. 454; Holt v. Hopkins, 63 Misc. 537, 117 N.Y.S. 177; St. Paul v. Chicago, M. & St. P. R. Co. 45 Minn. 387, 48 N.W. 21; Burleigh v. Hecht, 22 S.D. 301, 117 N.W. 367; Penley v. Waterhouse, 1 Iowa 498; Dent v. Jones, 50 Miss. 265; Rhodes v. Farish, 16 Mo.App. 430; Bensley v. Haeberle, 20 Mo.App. 648; Gray v. Fifield, 59 N.H. 131; Omaha & F. Land & T. Co. v. Parker, 33 Neb. 775, 51 N.W. 139; Hunton v. Nichols, 55 Tex. 217.

H. B. Spiller, for respondent.

The statute did not run while defendant was absent from and residing out of the state, and therefore the action on the judgment is not barred by the statute of limitations. Stern v. Bates, 9 N. M. 286, 50 P. 325; Shelden v. Barlow, 108 Mich. 375, 66 N.W. 338; Newlove v. Pennock, 123 Mich. 260, 82 N.W. 54; Seymour v. Deming, 9 Cush. 527; Craig v. Anderson, 96 Ky. 425, 29 S.W. 311; Brittain v. Lankford, 110 Ky. 484, 61 S.W. 1000; McArthur v. Goddin, 12 Bush, 274.

OPINION

BURKE, J.

This action is for the renewal of a domestic judgment for money, held by plaintiff against defendant, who has been absent from the state during the ten-year period of limitations. If the time of his absence be counted, the judgment has been barred by the terms of § 6786, Revised Codes of 1905. If, however, his absence be considered as tolling the statute of limitations, as provided in § 6796, the old judgment is sufficient as a basis for this suit.

Many other states have similar statutes, and their courts have frequently passed thereon, but we can find no state having identical laws with ours. As it is obviously a matter of statutory construction, we get less than the usual help from similar decisions of sister states. The portions of our statutes applicable follow:

"Section 6785. The following actions must be commenced within the periods set forth in the following five sections after the cause of action has accrued:

"Section 6786. Ten years; within ten years. 1. An action upon a judgment or decree of any court of the United States or of any state or territory within the United States. . . ." (The other four sections are not material).

"Section 6796. If, when the cause of action shall accrue against any person, he shall be out of the state, such action may be commenced, within the terms herein respectively limited, after the return of such person into the state; and if after such cause of action shall have accrued such person shall depart from and reside out of this state, and remain continuously absent therefrom for the space of one year or more, the time of his absence shall not be deemed or taken as any part of the time limited for the commencement of such action; provided, however, that the provisions of this section shall not apply to the foreclosure of real estate mortgages by action or otherwise. . . ."

Sections 7083-4 and 5 provide that the judgment creditor may make and file an affidavit stating the ownership, amount due, counterclaims, if any, and other information regarding his judgment, and, upon filing such affidavit with the clerk of the district court within ninety days of the expiration of the ten-year time of limitations, have a new judgment equal in all respects to the old, which new judgment would run for another period of ten years. This section was passed in 1901, and makes no effort to repeal any other section of the Code.

Section 6768 forbids the bringing of an action upon any judgment within nine years after its rendition, without leave of court, "for good cause shown and upon notice to the adverse party." Ch. 192, S. L. 1911, is a re-enactment of § 6796, making no change in this case so far as claimed by counsel.

1. We will consider first the general law of tolling the statute of limitations. By reference to § 6796 we find that it refers to the preceding five sections. Those sections relate to judgments, ten years; contracts, etc., six years; actions against sheriffs for forfeiture, etc., three years; slander libel, etc., two years; against sheriff for escape of prisoner, one year, and it relates to all of them. Not only does the statute refer to them all, but it immediately follows them in the Code. And, further, the said § 6796 points out its own exceptions, to wit, actions upon mortgage foreclosures by action or otherwise, and actions against trustees acting under the town-site laws of the United States and this state. Had the legislature desired to except domestic judgments from the provisions of § 6796, the exception would probably have been noted with real estate mortgages in the section itself. And still, again, it stands the test of reason that the legislature did not desire to extend the protection of our statute of limitations to nonresidents. When we look for precedent, we find the great weight of authority to be in favor of the tolling of the statute while the judgment debtor is out of the state. In fact only two states have been called to our attention wherein the rule seems to be otherwise, and those are hardly authority upon our statutes. Minnesota has the same, or similar tolling statute, but differs regarding the life of a judgment. The Minnesota statute, § 277, chap. 66, Gen. Stat. 1878, declares that a money judgment "shall survive ten year, and no longer." It is upon this clause that the Minnesota decisions have turned. Brown v. Dooley, 95 Minn. 146, 103 N.W. 894, wherein Judge Lovely says: "It is impossible to avoid the conclusion which follows from this clear and explicit language. It will admit of no other construction than that a judgment becomes legally dead . . . after the time prescribed." See also Lamberton v. Grant, 94 Me. 508, 80 Am. St. Rep. 415, 48 A. 127, which is a decision of the supreme court of Maine following the Minnesota courts in construing a Minnesota judgment. A very fine digest of the Minnesota decisions up to 1901 is there contained. It is only fair to say that the case of Gaines v. Grunewald, 102 Minn. 245, 113 N.W. 450, uses language that intimates that it might be held that even under our statute they would hold the judgment dead at the end of ten years, but said case was upon a foreign judgment; to wit, an Iowa judgment made the basis of a suit after the judgment debtor had removed to Minnesota, and thus not exactly in point. The Minnesota cases are, therefore, hardly authority in this state. Kansas is the other state we referred to as being a holder with the minority rule. The courts of that state for many years have held a judgment dead after ten years, and so hold that it will not survive even though the debtor were absent from the state. The Federal courts recognize this as the Kansas rule as to the courts of Missouri; but in the last decision in Kansas itself (Smalley v. Bowling, 64 Kan. 818, 68 P. 630), a very strong inclination was shown to break away from the precedent established, and three of...