29 Kan. 5 | Kan. | 1882
The opinion of the court was delivered by
On August 17,1875, E. H. Skaggs commenced an action in the district court of Leavenworth county against E. J. Myers, Hettie V. Myers, George Myers, John J. Myers, Abram E. Myers, Robert E. L. Myers, Eva B. Myers, and Herman Markson, administrator of the estate, of J. J. Myers, deceased, and E. • Kothman; and afterward, Ewing M. Skaggs, O. O. Searcy, James F. Ellison and John O. Dewees (partners as Ellison & Dewees), F. W. Murray, Jonathan Nix and Leonidas J. Story (partners as Nix & Story), Mark A. Withers, and Archibald J. Larimore, were made parties defendant. The action was- to recover the sum of $16,000 with interest, alleged to be due on eight promissory notes given by J. J. Myers, in his lifetime, to the plaintiff E. H. Skaggs, and to foreclose a mortgage on certain real estate, given by said Myers and wife to the plaintiff to secure the payment of said promissory notes. The defendants in this case included the widow, the heirs, the administrator, and the creditors of J. J. Myers, deceased, and all other persons claiming to" have any interest' in the subject-matter of the controversy. The several defendants filed answers to the plaintiff’s petition, the most of them setting up new matter by way of cross-petition, and asking affirmative relief. Proper replies were filed to these answers. The case was tried by the court below without a jury, and special findings and conclusions of fact and of law were made by the court. And upon these findings and conclusions, the court below rendered judgment against the affirmative claims of all the parties, and simply rendered a judgment against the two Skaggses for costs. The defendant Kothman duly excepted to all the findings and conelüsions, and also moved for a new trial, which
It appears from the pleadings, the evidence and the findings of the court below, that on January 5, 1874, and prior thereto, F. Kothman owned, a promissory note given by J. J. Myers to Kothman, dated June 4th, 1873, for the sum of $10,301.32, which note was then due. On that day, to wit, January 5, 1874, Kothman commenced an action against J. J. Myers on said promissory note, and attached all the lands which are now in controversy in this action; and on May 29, 1874, obtained a judgment in his favor and against Myers for the sum of $10,751:95, and at the same time, and in connection with such judgment, obtained an order that the attached property-should be sold to satisfy such judgment, with interest and-costs. On October 1, 1874, an execution was issued on this judgment and-the property in controyersy was levied on and offered for sale; but was not sold, for the want of bidders. On December 10,1874, J. J. Myers died; and on May 7, 1875, Herman Markson was duly appointed and qualified as administrator of Myers’s estate. On May 8,1875, and subsequently for three weeks, Markson gave due notice, by publication in a newspaper, of his appointment and qualification as administrator of such estate. On August 17,1875, E. H. Skaggs commenced this preseut action against Kothman and others, as before stated. On November 8, 1875, Kothman answered, setting up, by way of cross-petition and counter-claim, all the facts constituting his claim against the estate of J. J. Myers, deceased; and asking by way of affirmative relief, that his judgment and judgment lien should be enforced as against, the .lands in controversy. On September 27, 1876, another execution was issued, in the case of Kothman v. Myers, and was returned unsatisfied. On March 9, 1881, the trial in this present case was commenced. On March 12, 1881, the judgment in the case of Kothman v. Myers was revived against the widow and the heirs of J. J. Myers, deceased; but it was not revived against Markson,
The court below, in effect if not in words, found that no person had any specific lien upon the property in controversy, and we think that there is no question as to the correctness of this finding, except as to Kothman; and the only question in the case is, whether Kothman had any such specific lien, or not. That Kothman once had a lien on the property, paramount to the claims of all other persons, we think must be admitted; but the question arises, Has he lost .this lien by his own laches, or from any other cause? About January 5, 1874, he obtained an attachment lien upon the property; on May 29, 1874, he obtained a judgment lien thereon; and about October 1, 1874, he obtained an execution lien thereon; and these liens were at the time paramount to any interest or lien of any other person. Now has he, for any reason, lost all these liens? ' The parties adverse to Kothman claim that he has; and this claim, as we understand it, is founded upon the ground that Kothman, by his own laches, in not properly prosecuting his claim, has allowed certain statutes of limitations to intervene, and not only to destroy his lien, but also to bar all his right to any relief as against the estate of J. J. Myers, deceased. The only statutes of limitations which can possibly be urged as barring or impairing Kothman’s right to relief, are the following: Section 468 of the civil code; § 433, in connection with § 439 of the civil code; § 81,.in connection with § 80, of the executors and administrators act;
Now we do not think that any one of these statutes of limitations has so operated as to bar, or even impair, any right possessed by Kothman; and this for the reason, universally recognized, that statutes of limitations do not run against any claim or demand during any portion of the time while a suit is pending for the enforcement of such claim or demand. The rights of parties, so far as the statutes of limitations are concerned, are always to be determined, not as of the date of the trial of the case, or of the rendering of the judgment in the case, but must be determined as of the date when those rights were first set forth for adjudication in the pleading of the party who’claims to possess such rights.
For the present we shall consider that the plaintiff’s judgment was a valid and subsisting claim against the estate of J. J. Myers, deceased, and also was a valid and subsisting lien upon the property in controversy at the time when the defendant filed his answer in the present case. Also, for the present, we shall consider that Kothman had a right to set forth his claim in such answer, and to prosecute and enforce the same in the present action. We shall have more to say, however, with reference to these matters, hereafter.
Perhaps it ■ is unnecessary to say anything further with reference to any of these statutes of limitations; but still it would be proper to mention some of them more specifically. As to § 468 of the civil code, we think it has no room for operation in this action, for an execution was issued and levied upon the property in controversy, within less than one year after the rendition of the judgment, which wholly prevented said § 468 from so operating as to destroy, or even to impair in any manner or degree, any of the force or efficacy of Kothman’s judgment, or his judgment lien. Neither do we think that § 433 in. connection with § 439, of the civil code, can have the effect to impair any right of Kothman. These sections are the ones which limit the time to one year, within
We do not think that it is necessary to say anything with reference to §106 of the executors and administrators act, or with reference-to §18 of the civil code. These sections clearly do not bar or impair any right of Kothman’s. Sec. 445 of the civil code provides that a judgment shall bebome dormant in five years after the last execution has been issued. Now we do not think that this section can have the force or effect to bar any right of Kothman’s, for the reason that Kothman’s answer was filed in much less time than five years after the last valid execution was issued in the case. (Dempsey v. Bush, 18 Ohio St. 376.) The issuing of an execution in a case is simply an attempt to enforce the judgment, and such is precisely the object of the present proceeding; and under the circumstances of this case the present proceeding is a much more efficient remedy 'than the issuing of an execution. Indeed, as appears from the facts of this case, the issuing of an execution was not a sufficient remedy at all, for while so many conflicting claims existed against the property, no person would bid upon the property, and therefore the property could not be sold at sheriff’s sale. When all these conflicting claims are settled, as they must be in this case, and the property is then offered for sale, it can undoubtedly be sold, and be sold for a fair and adequate price.
.Perhaps w.e might here properly close this opinion; but
With these views, it follows that the judgment of the court below must be reversed. The judgment will therefore be reversed, and the cause remanded with the order that judgment be rendered in favor of Kothman as prayed for in his answer.