White v. White
| Decision Date | 28 June 1933 |
| Docket Number | No. 14875.,14875. |
| Citation | 98 Ind.App. 587,186 N.E. 349 |
| Parties | WHITE v. WHITE et al. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Starke Circuit Court; Alfred J. Link, Judge.
Proceeding by Edith White against Alwilda White and another, for leave to cause an execution to be issued on a judgment obtained by plaintiff against defendant named over 20 years previously. Judgment for plaintiff, and defendant named appeals.
Reversed with directions.
Oscar B. Smith, of Knox, for appellant.
William J. Reed, of Knox, for appellees.
On June 27, 1909, appellee Edith White obtained a judgment against appellant in the Starke circuit court for the sum of $3,000. On September 30, 1932, appellee White filed her verified motion asking for an order of court granting leave to have an execution issued on said judgment. Later, appellee William C. Pentecost, having been made a party defendant, filed his answer in the form of an application for the issuance of an execution, and set up that he held a lien on the judgment for attorney's fees, and consented that execution might issue as prayed in appellee's application.
This proceeding was brought under section 744, Burns' Annotated Statutes (1926), which reads as follows:
Notice was duly issued and served upon appellant. To the verified motion, appellant filed a demurrer which challenged the sufficiencyof the motion by raising the statute of limitations. The appellant, likewise, filed a demurrer to appellee Pentecost's application, but no question is presented thereon.
The demurrer to the motion was overruled, and appellant answered in four paragraphs: (1) General denial; (2) twenty-year statute of limitations; (3) twenty-year statute of limitations, but more in detail; (4) setting up that the judgment was fully paid and satisfied by the lapse of time. Replies in general denial were filed to the second, third, and fourth paragraphs of answer by appellee Edith White which closed the issues.
The cause was submitted to the court for trial without the intervention of a jury. Upon request, special finding of facts was made, and conclusions of law rendered thereon, upon which judgment was rendered for appellees.
[1] A motion for new trial was duly filed by appellant which sets forth eight grounds therefor. The evidence is not in the record, hence no question is presented by the motion for new trial. The appellant has assigned as errors: (1) The overruling of appellant's demurrer to the motion; (2) the court erred in conclusion of law number 1; (3) the court erred in conclusion of law number 2. Assignment number 4 is a repetition of number 2 and number 3, and assignment number 5 relates to the overruling of the motion for new trial.
As the same question is presented in the three assignments of error above, namely, the overruling of the demurrer to appellee's motion, and the alleged errors in the court's conclusions of law, they will all be treated together.
Hereafter in this opinion, reference to “appellee” will mean Edith White only as appellee Pentecost's interest is that of a lien upon the judgment and contingent upon appellee White's rights herein.
[2] Appellant raised the question that this action is barred by the statute of limitations by her demurrer and second and third paragraphs of answer; and relies upon section 302, Burns' Annotated Statutes (1926), cl. 6, which provides for the time for the commencement of certain actions after they have accrued, and reads as follows: “Upon contracts in writing other than those for the payment of money, on judgments of courts of record, and for the recovery of the possession of real estate, within twenty years.”
Appellee states that appellant is relying upon section 314, Burns' Ann. St., as well as upon section 302, supra. Appellant contends that her sole reliance is upon section 302, supra, so the question whether section 314 is applicable is not before us. This section provides that: “Every judgment and decree of any court of record of the United States or of this or any other state shall be deemed satisfied after the expiration of twenty years.”
Upon request the court found the facts specially and stated conclusions of law thereon. In the special finding of facts, the court found that appellee procured a judgment against appellant on June 27, 1909, in the Starke circuit court for the sum of $3,000; that there is due on said judgment including interest the sum of $4,195 which has never been paid; that no execution has been issued on said judgment, and same has never been revived or renewed; that appellant is the owner of real and personal property situated in Starke county, and has been a bona fide resident of the state of Indiana continuously from the 27th day of March, 1912, to the present time; that the appellee Pentecost has a lien on said judgment for attorney fees for procuring the same; that appellee's “application” for the issuance of an execution on said judgment was filed on the 30th day of September, 1932.
Upon the special finding of facts, the court stated its conclusions of law, as follows:
It will be observed that the appellee obtained the judgment against appellant on June 27, 1909; that she filed her motion (which has also been denominated an “application”) on September 30, 1932, which was more than twenty-three years after the entry of the judgment. It will be further observed that the appellant has been a continuous resident in the state of Indiana from March 27, 1912, to the time of filing the motion; that the motion for the execution was filed more than twenty years after March 27, 1912.
The question to be determined in this appeal is, May an execution be issued under section 744, Burns' Annotated Statutes (1926), supra, upon motion and notice as provided therein, upon a judgment which had been rendered more than twenty years prior to the filing of such motion, when the question of statute of limitations has been properly raised? In determining this question, we have in mind the decision of this court in the case of Odell v. Green (1919) 72 Ind. App. 65, 121 N. E. 304, 122 N. E. 791, and also the case of Pensinger v. Jarecki Manufacturing Co. (1922) 78 Ind. App. 569, 136 N. E. 641, 642, both of which cases are relied upon by appellee to sustain her contention of the right to have an execution issue upon her judgment. Both of these cases will be commented upon later in this opinion.
The statute of limitations was also raised by exceptions to the conclusions of law, which are properly assigned as error herein. As the ruling upon the demurrer and exceptions to the conclusions of law raise the same question, we shall consider the question upon the exceptions to the conclusions of law.
The first question to be determined is, Does the section of the statute of limitations, section 302, supra, apply in this case, and, if it does, having been properly pleaded, and the facts relating thereto found in the special finding of facts, are the conclusions of law stated by the court erroneous? The statute provides that “the following actions shall be commenced,” etc. Appellee asserts that this proceeding is not an action within the purview of section 302, supra.
Section 744, Burns' Ann. St. (1926), supra, provides that after ten years no execution can be issued upon any judgment without securing an order of the court therefor; and to secure such order, the judgment creditor must file a verified motion setting up his judgment and facts as provided in the statute, and cause notice to be served upon the judgment debtor. Our courts have recognized the filing of pleadings to this motion. We think that the proceeding contemplated by section 744, supra, is such an action on a judgment as comes within the purview of clause 6 of section 302, supra. Vol. 1 Watson's Works' Practice, § 3, pp. 5 and 6. Jaseph v. Schnepper (1891) 1 Ind. App. 154, 27 N. E. 305, 306;Berry v. Berry (1897) 147 Ind. 176, 46 N. E. 470, 471;Burkett et al. v. Holman (1885) 104 Ind. 6, 3 N. E. 406; Vol. 1, Burns' Revised Statutes (1926) § 256; Strong v. State ex rel. (1877) 57 Ind. 428.
In the case of Berry v. Berry, supra, the Supreme Court had under consideration a proceeding to declare a person of unsound mind, and to appoint a guardian, wherein the question was raised whether such proceeding was a civil action within the meaning of the statute which authorized a change of venue, the court said: “It has been held by this court, also, that an action ‘is any judicial proceeding which, conducted to a termination, will result in a judgment’; and that a civil action ‘is an action wherein an issue is presented for trial, formed by the averments of the complaint and the denials of the answer, or the replication to new matter, and the trial takes place by the introduction of legal evidence in support of the allegations of the pleadings, and a judgment in such an action is conclusive upon the rights of the parties, and could be pleaded in bar”’ (and cases cited).
[3][4] Surely a proceeding under section 744, supra, for...
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Williams v. Lyddick, 17362.
...it commenced an action at law the conduct or progress of which was governed by the procedure fixed by the Civil Code. White v. White, 1933, 98 Ind.App. 587, 186 N.E. 349. The issue to be determined by the court was whether any part of the judgment upon which execution was sought remained ‘u......