45 Iowa 294 | Iowa | 1876
I. The petition, after alleging .the recovery of the judgment sued upon, on the 16th day of November, 1850, in the Court of Common Pleas of Carroll county, Ohio, and setting out a copy thereof, shows that the judgment was revived by scire facias, September 8,1878. It does not appear that the scire facias was personally served, though the order of revivor shows that the court found that service was duly had according to law. Another scwe facias was issued and personally served upon defendant in Washington county, in this State, and thereon an order of revivor was had, May 2, 1874. The final order in each proceeding is, that “the judgment stand revived,” and that execution issue against, the defendant for an amount found due, with costs. Duly authenticated copies of the judgment and orders of revivor are made
To the petition defendant demurred, assigning five grounds upon which he claims'the petition shows the action cannot be maintained. These several causes of demurrer may be reduced to two, which present the substance of all, as follows:
1. The cause of action is barred by the statute of limitations.
2. The orders of revivor are not valid and binding upon defendant; the first having been procured upon the service of process by publication, the second by personal service in this State.
Under the law of this State an action upon a judgment of a court of record is barred in twenty years, and this provision extends to judgments recovered in the courts of sister States and of the United States. Code, § 2529, ¶ 6. The original judgment declared on in plaintiff’s petition was recovered in 1850; this action was brought in 1875. If the period of limitation prescribed by the statute commences at the date of the original judgment, the action is barred. But plaintiff insists that the judgments of revivor arrested the operation of the statute and the period of limitation dates therefrom. The question presented in this position now demands our attention.
Under the laws of the State of Ohio, judgments; after the expiration of five years, become dormant and cease to operate as liens, and must be revived before executions can issue thereon. Upon proper proceedings, in the nature of scire facias, “if sufficient cause be not shown to the contrary, the judgment shall stand revived for the amount which the court shall find to remain due and unsatisfied,” and a judgment to
The orders reviving the original judgment conform to the provisions of the statute and direct execution to issue for the amount found due plaintiff. So far as we can discover, the proceedings authorized by the Ohio statute are in no respect different in their nature from those which are usually had upon scire facias, indeed, the proceedings must be termed as those of scire facias. The final judgment directed by the statute to be entered therein is not a new judgment, but the revivor of the old one. This has been directly ruled in this State under a statute not unlike the Ohio statute in question. Code, 1851, §§ 1887, 2176-2178; Denegre v. Haun, 13 Iowa, 240; Vredenburgh v. Snyder, 6 Iowa, 39. And it would seem that the ruling is in accord with the authorities. We are unable to discover that a different rule prevails in Ohio; counsel for plaintiff makes no such claim and refers to no Ohio decision on this point. The revivor of a judgment by scire facias is, then, but a proceeding to enforce it — to authorize the issuing of process of execution thereon. No new judgment is entered. It is, then, very plain that the period of limitation begins at the date of the original judgment, and not at the date of the judgment upon the scire facias, which is a mere step taken for the enforcement of the original judgment. This is rendered, if possible, plainer by the fact that the action is brought on the original judgment and not on the order upon the scire facias. The judgment became dormant, that is, execution could not issue thereon. The scire facias revived the right to process on the judgment, which -was its sole purpose and only effect.
In support of his position, that the statute of limitations begins to run only from the date of the revivor, plaintiff' cites Fagan v. Bentley, 32 Geo., 534. This case, as well as three or four Irish decisions to which we have been referred, hold that the judgment in scire facias, under statutes similar to our own and the Ohio statute, is to be regarded as a new judgment, and the statute of limitations must be regarded as beginning-to run therefrom and not from the date of the original judg
The j'udgment sued upon is valid and may be enforced in the State of Ohio — it is not barred there by a statute of limitation. It follows, it is insisted in the argument, that, under these constitutional and statutory provisions, it must be enforced here. The error in the argument results from failing to consider the fact that the statute of limitations pertains to the remedy and not to the right of action or validity of the cause of action. Story’s Conflict of Laws, § 876; 2 Story on the Constitution, § 1385.
The United States Supreme Court has decided the question raised by plaintiff, holding that the provisions, constitutional and statutory, relied upon by plaintiff, do not prevent the several States from enacting statutes of limitations barring actions upon j'udgments rendered in other States. Bank of the State of Alabama v. Dalton, 9 How., 522; M’Elmoyle v. Cohen, 13 Peters, 312; Randolph v. King, 2 Bond, 104.
IY. It is lastly insisted that the petition does not show that defendant was a resident of this State for the full period of limitation, and, as the question is raised upon demurrer, it cannot be presumed that he has resided here for a time that will entitle him to a benefit of the statute.
The foregoing discussion disposes of all the questions in the case which we are required to determine. The judgment of the Circuit Court is
Affirmed.
