Whitworth v. McKee

• Decision Date: 26 June 1903
• Citation: 32 Wash. 83,72 P. 1046
• Parties: WHITWORTH et al. v. McKEE.
• Court: Washington Supreme Court

72 P. 1046

32 Wash. 83

WHITWORTH et al. v. McKEE.

Supreme Court of Washington

June 26, 1903

Appeal from Superior Court, King County; Boyd J. Tallman, Judge.

Action by F. H. Whitworth and another against George C. McKee. From a judgment for plaintiffs, defendant appeals. Reversed.

James McNeny and R. J. Huston, for appellant.

Greene & Griffiths, for respondents.

FULLERTON C.J.

On January 18, 1896, the appellant recovered a judgment against the respondents in the superior court of King county for the sum of $4,357.60. The respondents shortly thereafter appealed from the judgment to this court, giving a cost bond only which court, after a hearing on the merits of this appeal affirmed the judgment, entering its judgment of affirmance on December 18, 1896. On October 10, 1901, the appellant caused an execution to issue on the judgment, which was placed in the hands of the sheriff, who levied upon and sold thereunder certain real property described as follows: 'Lot nine (9) in block nine (9) of Ferm addition to the city of Seattle lots one (1), two (2), and three (3) in block six (6) of Canal addition to the city of Seattle; west one-half (1/2) of lots two (2) and three (3) of block sixteen (16) of Boren's plat of an addition to the town (now city) of Seattle, all situate in King county, state of Washington.' The lots were sold in three separate parcels, each of which was bid in by the appellant; the first for the sum of $150, the second for the sum of $150, and the third for the sum of $1,500. Due return of the sale was made by the sheriff to the court on the 16th day of November, 1901, whereupon the sale was docketed for confirmation, and afterwards confirmed by an order entered on December 16, 1901. This action was brought to set aside the sale. The court found that the judgment under which the sale was had was void, that the sale was a nullity, that the same constituted a cloud upon the respondents' title which they were entitled to have removed, that the respondents had been damaged by the sale in the sum of $500, and entered a judgment vacating and setting aside the sale, and for damages in the amount so found, together with the costs and disbursements of the action. This appeal is from that judgment. As the questions suggested by the assignments of error can best be considered by examining in order the several objections urged against the validity of the sale, it is in that manner we shall consider them.

1. By a reference of the dates above given it will be noticed that the execution under which the property was sold was issued more than five years after the date of the rendition by the superior court of the judgment on which it was based, but within five years from the date of its affirmance by this court. The respondents contend, and the trial court held, that, because more than five years had elapsed between the date of the rendition of the judgment by the superior court and the date of the issuance of the execution, the judgment was at that time dormant and incapable of supporting an execution, and that the sale thereunder was void, under the rule of the cases of Brier v. Traders' National Bank, 24 Wash. 695, 64 P. 831; Packwood v. Briggs, 25 Wash. 530, 65 P. 846; Hardin v. Day (Wash.) 70 P. 118; and Hewitt v. Root (Wash.) 71 P. 1021. These cases do lay down the rule that a judgment becomes dormant and incapable of supporting an execution at the end of five years from the date of its rendition, but none of them undertakes to determine at what date a judgment shall be deemed to have been rendered, within the meaning of the statute, in a cause which has been appealed to this court and the appeal determined here upon its merits; that is to say, whether the five-year period commences to run in such a case from the date of the rendition of the judgment by the superior court, or from the date of the final judgment of this court. The statute, therefore, must be consulted to determine the question. Those directly applicable are the following (citations from Ballinger's Ann. Codes & St.):

'Sec. 5132. The real estate of any judgment debtor and such as he may acquire, shall be held and bound to satisfy any judgment of the district or circuit court of the United States, if rendered in this state, or of the Superior or Supreme Court, or any judgment of a justice of the peace for the period of five years from the day on which said judgment was rendered, and such judgments shall be a lien thereupon to commence as follows: Judgments of the superior court of the county in which real estate of the judgment debtor is situated, from the date of the entry thereof; judgments of the district or circuit courts of the United States, if rendered in this state; judgments of the Supreme Court; judgments of the superior court of any county other than the county in which judgments of the superior court of any county other than the county in which said judgment was rendered, and judgments of a justice of the peace, from the time of the filing and indexing of a duly certified transcript or abstract of such judgments, as provided by this chapter, with the county clerk of the county in which said real estate is situated.'

'Sec. 5143. An appeal to the Supreme Court or stay of execution shall not affect any existing lien; and in all cases of an appeal the date of final judgment in the Supreme Court shall be the time from which said five years shall commence to run. Personal property shall only be held from the time it is actually levied upon.'

The learned counsel for the appellant have submitted an elaborate argument in an endeavor to show that a proper construction of these statutes requires the holding that the five-year period commences to run at the date of the rendition of the judgment by the superior court in all cases, notwithstanding the apparent provision to the contrary contained in last section quoted. But, without following the argument in detail, we think the contention cannot be sustained. Plainly, the 'said five years' referred to in the last section was the 'period of five years' mentioned in the first, during which the land of the judgment debtor should be bound by the judgment. It is equally plain, also, that the statute fixes the date of final judgment in the Supreme Court as the time from which the five-year period shall commence to run 'in all cases of an appeal,' regardless of the nature of the case, or whether or not the judgment appealed from is affirmed on an appeal with or without a supersedeas bond. The Legislature can, of course, fix the duration of a judgment lien at such a length of time as suits its pleasure; it can prescribe the time of its commencement and its ending, and make these hinge on the happening of particular events. And when it has done this in language clear and unmistakable, as it has in the statute before us, there is no room for construction, and the courts can do nothing else than give the statute effect. As the judgment on which the execution was issued was affirmed on appeal by this court on December 18, 1896, and the execution was issued on October 10, 1901, it was within the period of five years from the date of its rendition within the meaning of the statute, and consequently was not void for want of a live judgment to support it. There is nothing in Sears v. Kilbourne, 28 Wash. 194, which is against this view of the statute. On the contrary, the distinction here made was clearly pointed out in the opinion in that case, where the court says: 'The statutes of this state limit the lien of a judgment to five years from the date of its rendition, whether the same be a judgment of this court, the superior court, or that of a justice of the peace; providing, however, that, where an appeal is taken to the Supreme Court on any judgment, 'the date of final judgment in the Supreme Court shall be the time from which said five years shall commence to run.' Ballinger's Ann. Codes & St. §§ 5132, 5143.'

2. It is next said that the execution is void because of the clause, found in section 5192 of the Code, which prohibits the issuance of an execution on a judgment after the lapse of a period of five years without the issuance of an execution. The whole of the section is as follows: 'The party in whose favor judgment has been given or may hereafter be given or entered in any court of record in this state or the territory of Washington may have an execution issued at any time for the collection or enforcement of the same providing, that if a period of five years shall have elapsed without an execution being issued on such judgment, then execution shall not issue thereafter until such judgment shall be revived in the manner provided for by law.' This section was enacted in its present form by the territorial Legislative Assembly of 1888 (Sess. Laws 1887-88, p. 94, c. 52), and was doubtless intended to confer on the judgment creditor the power to keep his judgment alive indefinitely by the process of causing execution to issue thereon at intervals of time of less than five years' duration. In so far, however, as it had this effect, it was superseded by section 5132, supra, which was enacted later in time, and which limits the lien of all judgments to a period of five years, whether execution has been issued on them in the meantime or not. Now, it will be noticed that the particular language which is thought to render this execution void is found in the proviso, and we think it may fairly be questioned whether it did not fall by the repeal of the enacting part of the statute. A proviso is very rarely of itself an enacting clause in the sense that it makes that law which was not so before. Its natural and appropriate office is to limit and qualify what is expressly enacted, and is usually so identified...