29 Kan. 200 | Kan. | 1883
The opinion of the court was delivered by
On May 11, 1877, in an action then pending in the district court of Clay county, ‘wherein Luther
“Received, June 22,1877, of J. M. Frank and G. Kuhnle, of these defendants, the amount of said judgment. And in consideration thereof we do hereby assign, sell, transfer and set over the said judgment, to wit, the judgment in this cause in favor of L. Hall & Company, plaintiffs, against the said R. T. Carr, J. S. Harris, J. M. Frank and G. Kuhnle, defendants, to the said Frank and Kuhnle, who paid the same as such sureties.
“ Witness our hands, on the day first written. Costs paid.
L. Hall & Co.”
Luther Hall died in March, 1880. The said judgment was never revived. On November 15, 1881, an execution was issued upon said judgment, at the instance of Messrs. Anthony & Kellogg, who were the attorneys of record fqr Frank and Kuhnle. This execution was not fully executed. On February 8,1882, Messrs. Anthony & Kellogg, subscribing their names as “attorneys for plaintiff,” filed a precipe for an alias execution, which was issued and levied upon certain real estate in Clay county, Kansas; which real estate, prior to November 22, 1881, had been owned by John S. Harris, and subsequent thereto by the Kansas Central railroad, to which Harris conveyed it by warranty deed. The said real estate was sold under the alias execution.
“First, The judgment upon which the execution wás issued was dead, by reason of the death of the plaintiff therein, (subject, however, to resurrection in the manner prescribed by the code,) and while in that state no process could issue thereon.
“Second, Frank and Kuhnle were not entitled to the benefit of the judgment to enforce contribution aud payment. They could acquire control of it for such purpose only by following the provisions of § 480 of the code, which they did not.”
We shall consider these questions in their order.
I. We do not think that the judgment was dead, as the plaintiff in error claims. It was valid and in full force and effect when it was transferred by L. Hall & Co. to the present defendants in error, Frank and Kuhnle; and the subsequent, death of Hall, who had no possible interest in the judgment at the time of his death, could not destroy its force, or effect, or operation. It was still valid and operative in the hands of Hall’s assignees, Frank and Kuhnle, and they still had the right to enforce it, just the same as though Hall had continued to live. Besides, what good reason could there be for reviving the judgment in the name of,Hall’s administrator when the administrator could take no possible interest in the judgment? But suppose that Hall died with
II. Section 480, of'the civil code, reads as follows;
“When property liable to an execution against several persons is sold thereon, and more than a due proportion of the judgment is laid upon the property of one of them, or one of them pays, without a sale, more than his proportion, he may compel contribution from the others; and .when a judgment is against several, and is upon an obligation of one of them as security for another, and the surety pays the amount, or any part thereof, either by sale of his property or before sale, he may compel repayment from the principal; in such case the person so paying or contributing is entitled to the benefit of the judgment, to enforce contribution of repayment, if within ten days after his payment he file with the clerk of the court where the judgment was rendered notice of his payment and claim to contribution or repayment. Upon a filing of such notice the clerk shall make an entry thereof in the margin of the docket.” (Comp. Laws 1879, p. 666.)
We have now considered all the questions presented by counsel for plaintiff in error to- this court, and upon each of these questions we think the decision of the court below was correct; that is, we think that there was no necessity for any revivor of the judgment in the name of the legal representatives of Luther Hall, deceased, or otherwise. And we think that the sureties, Frank and Kuhnle, after obtaining an assignment of the judgment from the owner thereof, had a right to enforce the same, although they may not have literally,
The judgment of the court below will be affirmed.