Worthington v. Miller, 58242

• Decision Date: 17 April 1986
• Docket Number: No. 58242,58242
• Citation: 11 Kan.App.2d 396,727 P.2d 928
• Parties: Warren WORTHINGTON, Appellee, v. Jene A. MILLER, Appellant.
• Court: Kansas Court of Appeals

Page 928

727 P.2d 928

11 Kan.App.2d 396

Warren WORTHINGTON, Appellee, v. Jene A. MILLER, Appellant.

No. 58242.

Court of Appeals of Kansas.

April 17, 1986.

Publication Granted Oct. 10, 1986.

Syllabus by the Court

1. A trial court's conclusions of law are subject to appellate review and will be set aside if incorrect.

2. A judgment rendered in a sister state and later revived in accordance with that state's law is entitled to recognition in Kansas if revival in the sister state created a new judgment and was not merely an extension of the enforcement period. The revived judgment is entitled to full faith and credit despite the fact the original judgment could not have been revived under Kansas law.

3. Under Colo.Civil Rules Annot. 54(h) (1985), revival creates a new judgment which may be registered in Kansas during the period of time permitted by the applicable Kansas statute of limitation. The period of time to register a foreign judgment begins to run when the judgment is rendered, not when the cause of action arose.

4. A foreign judgment is not entitled to full faith and credit if the rendering state was without jurisdiction. The burden of challenging jurisdiction rests heavily on the party attacking the validity of a foreign judgment.

5. Matters recited in a sheriff's return on summons, which were within the officer's personal knowledge, may not be impeached, after judgment, by unsupported testimony.

Terry L. Cikanek, of Krysl & Cikanek, Stockton, for appellant.

Robert A. Thompson, of Barta & Barta, Salina, for appellee.

Before BRISCOE, P.J., and RALPH M. KING, Jr. and DAVID S. KNUDSON, District Judges, Assigned.

BRISCOE, Presiding Justice:

Jene A. Miller appeals from the trial court's enforcement of a Colorado judgment pursuant to the Uniform Enforcement of Foreign Judgments Act, K.S.A. 60-3001 et seq.

The facts of this case are not in dispute. Warren Worthington obtained a default judgment against Miller in Larimer County, Colorado, on December 23, 1974. This judgment remained unsatisfied and, on January 30, 1984, Worthington obtained an order from a Colorado district court reviving his original 1974 judgment.

On June 20, 1984, Worthington filed a certified copy of the Colorado judgment in Rooks County, Kansas, pursuant to the requirements of the Uniform Enforcement of Foreign Judgments Act. Following registration, Worthington executed garnishment against Miller's property located in Kansas. Miller filed a motion to suspend the garnishment in Rooks County District Court and also to cancel registration of the Colorado judgment. The court upheld the registration and enforcement of the Colorado judgment.

On appeal, Miller contends the Kansas statute of limitations bars registration of the 1974 Colorado judgment because the judgment was ten years old when Worthington registered it in Kansas. Miller relies on the five-year statute of limitations in K.S.A. 60-511(5) to argue that, in order to enforce a foreign judgment, the judgment must be registered in Kansas within five years from the date the judgment was rendered.

Key to our determination of this statute of limitations issue is our resolution of the underlying issue of whether the 1984 Colorado revival action created a new judgment, or whether it merely extended the 1974 judgment. Miller argues that revival merely extended the original judgment and, therefore, the Kansas statute of limitations bars registration. The trial court agreed with Worthington, who argues that revival created a new judgment in 1984 which could be registered within the Kansas statute of limitations because the judgment was then only several months old. In our review of this issue of law, we are guided by the premise that a trial court's conclusions of law are subject to appellate review and will be set aside if incorrect. Baker v. R.D. Anderson Constr. Co., 7 Kan.App.2d 568, 571, 644 P.2d 1354 (1982).

In Johnson Brothers Wholesale Liquor Co. v. Clemmons, 233 Kan. 405, 661 P.2d 1242 (1983), our Supreme Court again recognized that full faith and credit shall be given in each state to the judgments entered in sister states. The court went on to explain how statutes of limitations and revival of earlier judgments have affected the general premise of full faith and credit:

"[I]t has been recognized that a state may refuse to enforce the judgment of a sister state, where an action on that judgment is brought later than the applicable statute of limitations of the forum permits, even though the judgment would not have been barred in the state which rendered it.

"The principle is also well established that, where an action is brought in another state upon a judgment of a sister state which is a revival of an earlier judgment, and under the law of the state rendering the revival judgment it is a new judgment and not merely an extension of the statutory period in which to enforce the original judgment, a judgment of revival, as a new judgment, is entitled to full faith and credit and may not be refused enforcement on the ground that under the law of the forum the original judgment could not have been revived at the time it was revived by the judgment of the sister state. The rule has been applied both where the judgment of revival was rendered in the state where the original judgment had been rendered [citation omitted], and also where the judgment of revival was rendered in a sister state. [Citation omitted.] This principle was recognized in Tanner v. Hancock, 5 Kan.App.2d 558, 619 P.2d 1177 (1980)." 233 Kan. at 408-09, 661 P.2d 1242.

In order to determine whether the revival of judgment here created a new judgment, we must apply Colorado law. Johnson Brothers, 233 Kan. at 409, 661 P.2d 1242. Colo. Civil Rules Annot. 54(h) (1985) provides:

"A judgment may be revived against any one or more judgment debtors whether they are jointly or severally liable under the judgment. To revive a judgment a motion shall be filed alleging the date of the judgment and the amount thereof which remains unsatisfied. Thereupon the clerk shall issue a notice requiring the judgment debtor to show cause within ten days after service thereof why the judgment should not be revived. The notice shall be served on the judgment debtor in conformity with Rule 4. If the judgment debtor answer, any issue so presented shall be tried and determined by the court. A revived judgment must be entered within twenty years after the entry of the judgment which it revives, and may be enforced and made a lien in the same manner and for like period as an original judgment. If a judgment is revived before the expiration of any lien created by the original judgment, the filing of the transcript of the entry of revivor in the register of actions with the clerk and recorder of the appropriate county before the expiration of such lien shall continue that lien for the same period from the entry of the revived judgment as is provided for original judgments. Revived judgments may themselves be revived in the manner herein provided." Emphasis added.

By stating the revived judgment may be...