Kothman v. Skaggs, 29 Kan. 5

Kothman v. Skaggs

29 Kan. 5 | Kan. | 1882

The opinion of the court was delivered by

Valentine, J.:

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 *12motion was overruled, and now, as plaintiff in error, brings the case to this court and asks for a reversal of the judgment of the court below, so far as it affects his claim.

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, *13the administrator. On April 9, 1881, the court below made its findings and conclusions of fact and of law in this present case, and on April 30, 1881, rendered judgment upon such findings and conclusions. The judgment was against Kothman’s claim, as before stated. Was this judgment correct, or was it erroneous? In other words, has the defendant Kothman a paramount lien upon the property in controversy, which he can enforce in this present action as against the widow, the heirs, the administrator, and the general creditors of the estate of J. J. Myers, deceased? ' This is the only question in the case.

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; *14section 106 of the executors and administrators act; and §18 and §445 of the civil code.

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 *15which the judgment creditor can revive his judgment, except where the representatives or successors of the deceased consent that the judgment may be revived. (Scroggs v. Tutt, 23 Kas. 182.) Now the only, ground upon which it .can be claimed that these sections necessarily operate to bar the plaintiff’s right to enforce his judgment’and judgment lien in this action, is that the present proceeding cannot take the place of, or be a substitute for, the ordinary proceeding to revive a judgment under article 19 of the civil code, which article includes said §§ 433 and 439. We do not think that this ground is tenable. The proceeding in the present case is much more formal than the ordinary proceeding to revive a judgment, and whenever any difficult question arises as to whether the judgment, or any portion thereof, should be revived or not, justice would be much more likely to be done in a proceeding like the present than under the ordinary revivor proceeding; and there is no substantial right or privilege which the representative or the survivor of the deceased person might avail himself of under the ordinary revivor proceeding, which he could not also avail himself of and insist upon in the present proceeding. The present proceeding, as instituted by Kothman’s answer, is substantially a proceeding^ equity to revive a judgment against the administrator, the widow, the heirs, the creditors, and every other person interested in the estate of J. J. Myers, deceased, to the extent that Kothman may enforce such judgment against the property on which the judgment was a lien, by selling the property and using the proceeds of the sale for the satisfaction of the judgment, etc., in the same manner and to the same extent as the same might have been done on the day preceding Myers’s death. If there is any reason why this judgment, should not be revived and enforced by a sale of the property in Controversy, etc., any person having any adverse interest to Kothman may show it in the present proceeding as fully and completely as he could in the .ordinary revivor proceeding. We think the present proceeding may be maintained, and that it is not barred in any respect by said §§ 433 and *16439 of the' civil code. It fully and completely answers every purpose for .which an ordinary revivor proceeding might be instituted. Neither do we think that any right of Kothman’s has been impaired by reason of the provisions of §81, in connection with §80, of the executors and administrators act. Any demand against an estate is legally and properly exhibited against the estate by the commencement of an action against the administrator to enforce such demand. (Sec. 83 of the Executors and Administrators Act.) And the filing of an answer, setting up new matter, by way of cross-petition, and asking for affirmative relief, is the same as the commencement of an action for such affirmative relief. (Sec. 94 of the Civil Code; Kimball v. Connor, 3 Kas. 415.)

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 *17we think it would also be proper to make some further statements with reference to the nature and character of Kothman’s claim against the estate of J. J. Myers, deceased. On December 10, 1874, just prior to Myers’s death, Kothman’s judgment against Myers was a valid and subsisting judgment, and was a valid and subsisting lien upon the property in controversy. On that day Myers died. The judgment then ceased to be a judgment against any living person, but it did not become a nullity: it was still a judgment in a limited sense. It was a judgment in ábeyance, a dormant judgment, and one that might at any time within one year from Myers’s death, or from the appointment of his administrator, be revived against the representatives or successor of the deceased; and this without their consent. And it might also be so revived at any subsequent time, with the consent of such representatives and successor; and when it should be revived, it would be revived with all its attributes, with all its force and efficacy, and indeed with everything which it possessed on the day prior to the decease of the judgment debtor. (Halsey v. VanVliet, 27 Kas. 476, 479.) The judgment might also, without any final revivor, be used as the foundation of an action against the representatives or the successor of the deceased. (Scroggs v. Tutt, 23 Kas. 181, 189, 190; Case v. Huey, 26 Kas. 558.) And if it could, be used as a cause of action when the owner of the same is the plaintiff, it might also be used in any proper ease as a cause of action, by setting it forth in the answer when the owner thereof is the defendant. (Civil Code, §94.) It might also be exhibited to the administrator and established in the ordinary way in the probate court, the same as any other demand against the estate; or it might be enforced by an ordinary action in any court of competent jurisdiction, the same as any other demand could be. In the present case, the judgment was not revived against the administrator in any manner, nor was it established in the probate court, nor was it attempted to be revived or established or enforced against the administrator within one year after his appointment and qualification in any manner other than by setting it up in the *18present ease in Kothman’s answer; in which case, as we have before stated, the administrator and all other persons interested in the estate or in the subject-matter of the action,.were made parties. And no person except Kothman has at any time consented that Kothman’s judgment or claim should be revived or established or enforced in any manner or in any court. Under these circumstances, may Kothman’s judgment be established or enforced in this present action? We know of no sufficient reason why it may not be so established and enforced. It must be remembered that when Kothman filed his answer, his judgment was valid and subsisting, and had lost nothing of its original force or efficacy, except what it had lost by reason of the death of J. J. Myers. Kothman still had the power to revive his judgment against the administrator and heirs, and, indeed, against every representative or successor of the deceased. No statute of limitations of any kind had then run against it to bar it or to impair its force or efficacy in the slightest respect. It was as good and valid then as it ever was, except only what it had lost by reason of the death of Myers. Kothman undoubtedly had the right to set up his judgment in his answer in the present case, and to ask for the affirmative relief for which he did ask; for such has been the well-recognized practice in this state in similar cases ever since’ the state has had any existence. And as no statute of limitations had so operated as to impair any right of Kothman when he filed his answer in the present case, and as no statute of limitations can run against a claim while such claim is in litigation, we think it necessarily follows that no statute of limitations has as yet run against the plaintiff’s claim so as to bar or impair any of its force or efficacy, but his claim is yet as good and as valid as it was on the day of the death of J. J. Myers.

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.

All the Justices concurring.