White v. Moore

• Citation: 38 S.W. 505,100 Ky. 358
• Parties: WHITE et al. v. MOORE.
• Decision Date: 09 January 1897
• Court: Court of Appeals of Kentucky

38 S.W. 505

100 Ky. 358

WHITE et al. v. MOORE.

Court of Appeals of Kentucky.

January 9, 1897

Appeal from circuit court, Whitley county.

"To be officially reported."

Action by M. A. Moore against White & Cochran. From a judgment for plaintiff, defendants appeal. Affirmed.

K. D Perkins, for appellants.

R. S Crawford and G. C. Moore, for appellee.

LEWIS C.J.

August 14, 1872, White & Cochran obtained a judgment against L. and M. A. Moore for $584.55, upon which, September 28, 1872, an execution was issued, and in due time returned with the official indorsement, "No property found." On and not until February 16, 1890, another was issued, which was returned with this official indorsement: "Received of M A. Moore $200 on the within execution, and I return the within execution by consent of plaintiff, April 20 1891." And now this is an action in equity by M. A Moore, one of the original defendants, in which he asks judgment quashing the third execution, issued February 2, 1894, vacating the levy made under it, and prohibiting plaintiff in the original action from proceeding further by execution. As more than 15 years had elapsed after return of the first before the second execution was issued, the statute of limitation operated as a bar to the latter, as also to the one issued in 1894, unless by one of the modes suggested by appellants the running of the statute was suspended, so that the time antecedent to date of the second execution is not to be counted in computing the bar. It has been repeatedly held by this court, and may be considered settled doctrine, that a partial payment made on a bond or note within the statutory time operated as a suspension of the running of the limitation between the accrual of the cause of action on the instrument and date of that payment. And we think, if there had been a partial payment of the judgment, voluntarily made, by the defendant, within 15 years after September 28, 1872, when it was rendered, the running of the limitation in this case would have likewise been suspended; and, if the date of such partial payment had been less than 15 years prior to issual of the second execution, there would be no bar to either it or the execution issued in 1894. But more than 15 years had elapsed, and consequently there was a complete statutory bar to any proceeding on the judgment of 1872, when the payment of $200 was made on the execution of 1892. Consequently no...