51 F. 97 | 8th Cir. | 1892
Under the decisions of the supreme court of the state of Kansas construing the statutes of that state on this subject, this action was barred by the statutes of limitation of that state when it was commenced. 2 Gen. St. Kan. §§ 4092, 4095, 4542, 4537, 4522, 4524, 4525, 4530, 4531; Burns v. Simpson, 9 Kan. 666, 667; Mawhinney v. Doane, 40 Kan. 675, 678-680, 17 Pac. Rep. 44; Angell v. Martin, 24 Kan. 336;
But plaintiffs counsel contends that he is excepted from the operation of these statutes and decisions by the fact that there were no officers of the township qualified and acting therein from 1878 until 1886. That the citizens of the town conspired with the officers elected during that time to prevent their qualifying for the purpose of preventing the enforcement of these judgments. That section 21 of the Code of Kansas provides: “If, when a cause of action accrues against a person, he he out of the state, or has absconded or concealed himself, the period limited for the commencement of the action shall not begin to run until he comes into the state,
Finally, plaintiff contends that the suit on these judgments is not barred by the statutes of limitation and dormancy, because these mandamus proceedings upon the judgments have always been pending; and he invokes the rule that time does not run against a party under a statute of limitations while he has a suit pending to enforce his claim. It is undoubtedly true that, if the plaintiff had seasonably brought suit upon these judgments, as he has done in this case too late, time would not have run against him while such a suit was pending; but here the analogy between mandamus proceedings upon judgments against municipalities and the writ of execution upon judgments against individuals must not be lost sight of. Would the fact that the creditor in a judgment against an individual issued an execution, and thereby tried to enforce and continued to try to enforce his judgment for five years, prevent the statute of limitations from running against him? Certainly not. Neither will the mere fact shown in this case that in 1877 and 1878 writs of mandamus were issued and-served in .proceedings to collect these-judgments, while no further steps were taken and no other action had thereafter for more than six years, prevent the running of the stat
If the plaintiff in this case lias failed to collect tlie money that was due him it has not been because he was remediless under the law. It has been because for more than live years he issued no writ upon his judgments when he could have had a writ for the asking, and because he brought no suit, and made no application to revive his judgments, for more than three years after they became dormant, at a time when there was ample opportunity to serve notice and process upon the defendant. The judgment against him was right, and it is affirmed.