Kaufman v. Richardson

142 Ala. 429 | Ala. | 1904

DOWDELL, J.

The action in this case was commenced in the justice court, and was brought on a judgment, which the plaintiff had recovered against the defendant in another different justice court. The present-case was carried into the circuit court by the statutory writ of certiorari. ' In the latter court a demurrer was sustained to the complaint, and the plaintiff declining to further plead, a judgment was rendered on the demurrer in favor of the defendant, and from this judgment the plaintiff prosecutes this appeal.

Among other things, the demurrer, which was sustained by the circuit court, challenged the sufficiency of averments in the complaint. The demurrer in this respect was bad. The complaint contained every essential averment in a suit on a judgment. — Andrews v. Flack & Wailes, 88 Ala. 294.

The main aud important question presented by the demurrer, and insisted on in argument, is, whether an action can be commenced on a judgment within a year and a day, or in other words, before the expiration of the time after the rendition of the judgment, within which an execution could be issued on the same. A similar question was considered by this court as far back as 18 Ala., in Kingsland & Co. v. Forrest, 519. In that case the question was, whether an action of debt would lie in this slate on a judgment, rendered more than a year and a day, but less than ten years from the institution of the suit, and on which execution had issued within the year ami been returned no property found. 'After a review of the authorities, the conclusion was reached, that in such a case, the action would lie. In that case, in the opinion by Dargan, C. J., it is said, that the decided weight of American authority is that debt will lie on the judgment within the year and a day. This seems sound doctrine, and we are unable to see any good reason for a contrary view. It is a logical sequence to the conclusion reached in Kingsland & Co. v. Forrest, supra. In that case, the plaintiff having taken execution on his judgment within the year, had his right to another execution at the time suit was brought, just as much as the plaintiff who sues on the judgment within the year from its rendition, that being the time, within which execution may issue. The judgment is in the nature of a contract, and the obligation is on the defendant to.satisfy it from the time of its rendition if not legally stayed, and it is due from that time. It is no argument to say that the plaintiff should not be permitted to oppress thé defendant Avith the costs of another suit on the judgment, and a complete answer is, that the defendant may avoid this by satisfying the judgment.

In Field v. Sims, 96 Ala. 540, it was said:. “The weight of authority is in favor of the view that an action can be maintained on the judgment, although the time has not expired in which, under the common law, an execution could issue to enforce it.”- — 12 Am. & Eng. Ency. Law, 149. Furthermore, it was said in Kingsland & Co. v. Forrest, supra: “The remedy given by the statute is cumulative merely, and a plaintiff may, if his judgment be not satisfied, sue in debt upon it, although he could, under the statute, issue an alias execution.” In Field v. Sims, supra, which was an action on a judgment obtained before a justice of the peace, it was held that the statute of limitations began to run from the date of the rendition of the judgment. And this could not be unless the right of action on the judgment had accrued, since the statute of limitations, as a rule, only: commences to run from the accrual of- the right of action. See also, Marx v. Sanders, 98 Ala. 500.

Our conclusion is that the circuit court erred in sustaining the demurrer to the complaint, and for this error the judgment must be reversed.

Reversed and remanded.

McClellan, C. J.,, Haralson and Denson, J. J., concurring.