88 Ark. 587 | Ark. | 1909
This is an action instituted in the Garland Circuit Court by appellee against appellant upon a decree of a chancery court in the State of Tennessee rendered in favor of the former and against the latter and certain other parties for the recovery of the sum of two thousand, three hundred and twenty-one and 84-100 dollars. Appellant recovered judgment below for the full amount of the Tennessee decree.
The decree of the Tennessee court was rendered in the year 1899, and the present action was commenced in 1907, more than five, but less than ten years later.
A section of statute of limitations provides that “actions on all judgments and decrees shall Be commenced within ten years after the cause of action shall accrue, and not afterwards.” Kirby’s Digest, § 5073. Does this apply to foreign as well as domestic judgments?
Prior to 1844 there was no statute of limitations applicable in express terms to actions on judgments and decrees, and this court decided that the general statute making five years the .period of limitation as to all actions not otherwise provided for was applicable to actions on foreign judgments. In that year the Legislature enacted the statute quoted above as to “actions on all judgments and decrees.”
This court in Hallum v. Dickinson, 47 Ark. 120, and Hallum v. Dickinson, 54 Ark. 311, held that the ten-year statute of limitation was applicable to actions on foreign judgments. It is true, as contended by counsel here, that the point was not argued as to which statute was applicable, and the court did not discuss the distinction, but the judgment sued on was more than five years old when the action thereon was commenced here, the statute of limitations was pleaded as a defense, and the court held that the action was not barred. We think that is the correct construction of the statute. It is general in its terms, and by its express terms relates to “actions on all judgments and decrees.” 23 Cyc. 1509.
We can not presume that the. Legislature used these comprehensive terms merely for the purpose of including all kinds of domestic judgments. Brearley v. Norris, 23 Ark. 169; Hicks v. Brown, 38 Ark. 469.
It is further contended that the judgment was a joint one against appellant and one Nelson, and that he could not be sued, on it without joining Nelson. If this be conceded, the defect of parties was waived by failure to specifically plead it below — by demurrer or answer.
Another objection raised is that appellant’s alleged liability to appellee is based upon the latter’s violation of his public duty as commissioner of Henderson County, Tennessee, for the purpose of building a court house. The original cause of action was merged in the decree of the Tennessee court, and we are commanded by the Constitution of the United States to give full faith and credit to judicial proceedings of every other State. The decree of the Tennessee court is therefore conclusive as to the merit of the original cause of action. Peel v. January, 35 Ark. 331; Mills v. Duryee, 7 Cranch, 480; McElmoyle v. Cohen, 13 Pet. 312; Christmas v. Russell, 5 Wall. 290.
Appellant's motion to quash the service of summons on the alleged ground that he was mentally deranged at the time of the service was heard by the court on conflicting evidence and overruled. The finding of the court is conclusive, as there was sufficient evidence to sustain it.
Judgment affirmed.