The opinion of the court was delivered by
On the 28th day of June, 1860, Jack Martin filed his bill of particulars before William Jackson, justice of the peace in Shannon township, Atchison county, the bill of particulars being a promissory note, executed to him by A. J. Angell, for $100, and asking judgment thereon for $99.90, remitting the remainder. On the same day summons was issued, and on the next day, June 29, 1860, summons was returned served on Angell, and on the 2d day of July, 1860, judgment was rendered by the justice of the peace upon the note. On July 12, 1860, an execution was issued, and returned August 12, 1860, unsatisfied. On the 31st day of October, 1879, Martin filed his motion to revive said judgment before A. J. Keithline, justice of the peace, and successor in office to William Jackson, being the same court in which judgment was rendered. Notice was duly given to Angell, and on the 10th day of December, 1879, the adjourned day for the hearing of the motion, the judgment was revived by order of said justice of the peace, and upon petition in error to the district court the decision of
We shall notice but one question in this case, and that, the question of time. It will be perceived that this motion to revive was not made until more than nineteen years had passed after the return of the only execution issued on the judgment. Now, if this motion can be sustained, there is no limit in point of time to revivors of judgments. Fifteen years is the longest period named in any statute of limitations in this state, and that applies only in actions concerning real estate. Yet here, a judgment dormant for over fourteen years, and upon which no execution has been issued for over nineteen years, is sought to be revived and enforced. We shall not stop to consider the question raised by counsel as to whether there is any such thing as the revivor of a judgment of a justice of the peace, though the language of the statute certainly suggests the question. (Code, §445; Justices’ Act, §137.)
Conceding that such a judgment may be revived, we turn to the code for the rules and practice concerning revivors. Section 440 of the code provides that “if a judgment become dormant, it may be revived in the same manner as is prescribed for reviving actions before judgment.” Now an action before judgment cannot be revived without the consent of the defendant or proposed defendant, unless in one year from the time the order could have been made. (Code, §§433, 434.) In Scroggs v. Tutt, 23 Kas. 181, we construed this language in the case of a revivor after judgment against an administrator, and held that time was part of the manner. Mr. Justice Valentine, speaking for the court, said: “The proceeding to revive an action and the proceeding to revive a judgment are substantially the same; each must correspond to the same formula. Hence, where an action cannot be revived without the consent of the administrator, neither can • a judgment.” And again: “We think that a judgment cannot be revived against an administrator after a yeár has elapsed within which it could be revived, except with the
The judgment will be reversed, and the case remanded to the district court with -instructions to sustain the petition in error filed therein, and reverse the ruling of the justice of the peace reviving the judgment.