179 Iowa 1173 | Iowa | 1917
ment there entered was invalid. See Rogers v. Gwinn, 21 Iowa 58. It appears that defendant has continuously resided- in Pottawattamie County, Iowa, since long prior to the beginning of that action; that he, in company with one Slimmer, under the firm name of Slimmer & Martin, shipped cattle to Omaha for sale, and brought stock cattle there and sold to feeders in the country. This was done during the years from 1890 to 1895. The firm bought and sold through the commission house of Perry Bros. & Co., in part at least, and the suit appears to have been on a balance of account. The summons was served on defendant April 25, 1895, and required his appearance in court May Gth following. Martin testified:
That, shortly after service of notice, he met W. J. Perry, of the firm in Omaha; that he did not claim that he (Martin) owed “him any money.”
“And then, Mr. Perry said he would fix this, and he went down in his buggy and drove down to the court house and went in to a lawyer and told him to do no more with this, and I never knew anything more' about it, never knew there was such a thing against me in Nebraska.”
II. Under the laws of Nebraska, a judgment becomes dormant when five years have elapsed after the last execution issued thereon, or if none have issued, then from its entry. Sec. 8056, Rev. St. Neb.,. 1913. A dormant judgment may be revived, but action for that purpose must have been commenced within ten years after it became dormant. Sec. 8041, Rev. St. Neb., 1913.
Execution issued March 20, 1896, so that this judgment became dormant in 1901, and the period for bringing suit to revive expired March 20, 1911. But a dormant judgment is not necessarily dead. It only sleepeth. It may be revived, and in Nebraska this may be done only in the forum where the judgment was entered. Bank of Miller v. Moore, (Neb.) 154 N. W. 731. Suit may be maintained on a dormant judgment. David v. Porter, 51 Iowa 254; Mahoney v. State Ins. Co., 133 Iowa 570. The application for revivor under the Nebraska statute is not the beginning of a new action, but is auxiliary to the old, with the object of obtaining leave of the court to enforce the judgment. Bankers’ Life Ins. Co. v. Robbins, (Neb.) 80 N. W. 484. The right to apply for revivor of a judgment and that to maintain an action thereon are cumulative remedies. The judgment plaintiff may have either or both. Snell v. Rue, 72 Neb. 571 (117 Am. St. 813).; Freeman on Judgments (3d Ed.) 462; 23 Cyc. 1436.
As the remedies are independent, the circumstance that
“If, when a cause of action accrues against a person, he be out of the state, or shall have absconded or concealed himself, the period limited for the commencement of the action shall not begin to run until he come into the state, or while he is absconded or concealed; and if, after the cause of action accrues, he depart from the state, or abscond or conceal himself, the time of his absence or concealment shall ‘ not be computed as any part of the period within which the action must be brought.”
As defendant never resided in Nebraska, the .five-year statute of limitations never began to run. Hartley v. Crawford, (Neb.) 11 N. W. 729; Edgerton v. Wachter, (Neb.) 4 N. W. 389. Nor does Section 3452, Code, 1897, bearing on the same subject, have any application. Sloan v. Waugh, 18 Iowa 224; Petchell v. Hopkins, 19 Iowa 531; Knight v. Moline, E. M. & W. R. Co., 160 Iowa 160.
That the Supreme Court of Nebraska may have held a judgment to be specialty does not render it other than a judgment, and there is no ground for the suggestion that the period of limitations is- that defined for suits on written contracts. As less than twenty years had elapsed after the entry of judgment, the court rightly held the plea of the statute of limitations not good.