Frisbee v. Seaman

49 Iowa 95 | Iowa | 1878

Seevers, J.

1. foreign judgment: jurisdiction. I. Conceding the assignment of errors to be' sufficiently definite and specific, we proceed to a consideration of the alleged errors as presented by counsel for appellant in his argument. It is said, as the confession of judgment was made and sworn to in the county of Jefferson, that the Supreme Court of the city and county of New York had no power or jurisdiction to render a judgment thereon. But the petition states that such court was a court of competent jurisdiction, and this the demurrer admits. Besides this the confession is attached to and made a part of the petition. Turning to that we find it is entitled “ City and County of New York Supreme Court. ” The fact that it was sworn to in Jefferson county makes no difference. It is evident the intent was to have the judgment rendered in the Supreme Court in and for the city and county of New York.

2_._. pleading. II. It is insisted nc/ judgment was rendered, but the petition states there was, and this is ' admitted by cLemurrer. The clerk of the Supreme Court certifies that among the records and files he finds a. certain judgment on confession therein in words and figures following, etc., and then follows a regular and proper judgment, indorsed on the confession. It is insisted this is not sufficient, because it is not shown to have been entered of record. But we think the averments of the petition are sufficient on demurrer. It is unnecessary to say what would be the ruling if there had been an answer alleging there was no such record, and the proof had consisted simply of the record now before us.

III. This action was commenced in March, 1877, and it is lastly urged that the action is barred by the statute of limitations. An action on the judgment would have been barred in August, 1874, but for what is claimed to be a renewal thereof, or a promise to pay the same. The statute provides that causes of action, founded on contract, are revived by an admission that the debt is unpaid, as well as a new promise to pay the same. But such admission or new promise must be in writing, signed by the party to be charged thereby. Bevision, § 2751; Code, § 2539. The writing signed by the defendant is as follows:

“Judgment Supreme Court, N. Y., September 18, 1854, two thousand one hundred and fifty-six dollars and twenty-five cents. September 15,1805, says gets fifteen dollars per week in grocery and fruit store. I have this day paid five dollars on the above claim to renew the same and keep it from outlawing.

“Dubuque, September 26, 1866.

“Andrew Seaman.””

It is insisted the writing does not identify the judgment, but we think otherwise. The judgment referred to in the writing is of the same date as the one sued on, and was rendered by the Supreme Court of New York. The amount is the same, if the costs are added thereto, and this, it is evident, was done in the writing, and the latter must have the effect of reviving the judgment, or its very object and purpose is defeated.

3. statute of limitataions: new promise. The admission that the debt is unpaid, or the new promise, may be made before the bar of the statute becomes complete as well as afterwards. Penley v. Waterhouse, 3 Iowa, 418 ; Lindsey v. Lyman, 37 Id., 206.

It is well settled that a new consideration is not required to support such acknowledgment or new promise.

4. __:__ action. This action is not brought on the admission or now promise. Indeed, we regard the settled and better doctrine to be that the action should in all instances be brought on the original cause of action, and not on the new promise. Under the statute the original judgment was barred in twenty years from the date of its rendition. Code, § 2529.

One of two things we think must be true — First, that the writing has the effect to revive the judgment for the period of twenty years from the time it would otherwise have become barred; or, second, that it has the effect to extend the period of the statutory bar for twenty years from the date of the writing, and whichever view is adopted this action was commenced in time.

Whatever effect the writing has is by reason of its operation on the judgment.. This follows because no action can be brought on the writing, and such operation must be to extend the period of limitation from the one period or the other above stated.

Affirmed.