69 F. 193 | U.S. Circuit Court for the District of Western Arkansas | 1895
after stating the case as above, delivered the opinion of the court.
The interveners recovered their judgments against the railroad company, and they were liens on the company’s property, before the mortgage to the complainant was executed. But it is said the lien of all of the judgments except two had expired before the complainant took its mortgage. This contention is grounded on an erroneous view of the law applicable to the facts of the case. In Arkansas, judgments are liens on the real property of the defendant situated in the county in which the judgment is rendered for the period of three years, and when there has been no interruption to the right of the judgment plaintiff to enforce his judgment lien during the period allowed by the law for that purpose, and the judgment has not been revived, the lien expires at the expiration of the three years; but where, as in these cases, a stay of execution on the judgment for a specified time, or until the happening, of a certain event, is made part of the record entry of the judgment, the time during which execution is thus stayed is not to be computed as any part of the three-years limitation of the judgment lien. This is the rule, whether the time of the stay of execution is less or more than the period fixed by statute for the expiration of the lien of judgments. The law gives to the judgment plaintiff three years in which to enforce the lien of his judgment by execution. If the plaintiff does not avail himself of his right to enforce the lien during the time allowed for that purpose, he loses his lien. But the lien of a judgment is not lost if, during the period allowed by law for its enforcement, the plaintiff has been restrained from enforcing it by a stay of execution, duly entered of record, in pursuance of the agreement of the parties to the judgment. The stay of execution, when made part of the judgment entry, stays the running of the statute that limits the duration of the lien. The lien consists in the preferred right it gives the judgment plaintiff to seize and appropriate the property of the defendant to the payment of the judgment. The lien, without the right to enforce it, would be of no utility. The railroad contended, and the supreme court of the state decided, that the proper construction of that paragraph of the record entry of these judgments which provided that execution thereon should be stayed until the Stevenson Case had been “finally decided” meant that execution should be stayed until that case had been decided by the supreme court of the United States. It was perfectly well known that the decision of the supreme court
In Bombay v. Boyer, supra, the supreme court of Pennsylvania, speaking by Chief Justice Tililman, said:
“It was decided by tbis court in Pennock v. Hart, 8 Serg. & it. 3G9, that, where the judgment was entered with a stay of execution on record, the live years should run only from the time when the stay of execution expired. But it was not our opinion that any regard should be paid to a stay of execution, agreed on by :he parties but not appearing on. the record.”
And in Marshall v. Minter, supra, it was said that enjoining- a judgment until a bar of the statute of limitations attaches is an unconscientious advantage which the debtor should not be permitted to take. • The lien of the intervener's judgments is prior in time and
The conclusion readied on this branch of the cases renders it unnecessary to decide whether these judgments do not fall within the class of'debts and liabilities of the railroad company which were required to be paid as a, condition of appointing the receivers, though it would probably not be difficult to show that they fall within the letter, as they certainly do within the spirit, of that order.
It is suggested that these are judgments for penalties, and it is intimated that a court of equity will look upon them with disfavor for that reason, and will struggle to find some ground of avoiding their payment. These suggestions are unfortunate for the complainant and the defendant. When the origin of these judgments is looked into, it will be found that they are highly meritorious; no judgments could be more so. The defendant company set at defiance the law of the state, and charged its citizens for transporting them over its road two-fifths more than the law of the state allowed for the service. The suits that resulted in these judgments were brought to put an end to these illegal exactions. Although, the interveners recovered judgments in the court of original jurisdiction, the defendant eoinpaiiy continued to demand and exact five instead of three cents per mile for the transportation of passengers; and, so far as these interveners a,re concerned, continued to assert its right to do this until the decision of the titeveuson Case fey the supreme court of the United States on the 5th day of March, 1895. So far as anything appears in this record, the defendant company would have continued to defy the law of the state, and make these illegal exactions upon its citizens, to the present day, if these interveners had not sought in the mode they did to compel it to respect the law towards themselves as well as all others. -The amount of these judgments is inihiitesimai compared to the sums charged and received by the railroad company in excess of the legal rale of fare for transporting passengers. Two-fifths of all the money that went into the treasury of Die company for fares of passengers represented unlawful and illegal exactions. That money it still has. No portion of if has been returned to the persons who were illegally forced to pay it. The sums illegally exacted from the interveners have never boon returned or tendered to them. It required (fight years of litigation for the interveners to establish (heir own and the rights of the public in the premises. The judgments they recovered are very inadequate compensation to them for the service they perforated for the public and the long litigation to which they wore subjected, and are still being subjected, in a lawful effort to enforce the law of the state and maintain their legal rights. And the amount of these judgments is an absurdly inadequate punishment of the company for its open, gross, and long-continued disregard of the laws of the state and the rights of its citizens. The mass of the people will submit to such illegal exactions rather than incur the trouble, expense, and vexation attending a lawsuit to redress the grievance. Those citizens who take upon themselves the labor, risk,
The exceptions to the special master’s report are sustained, and an order will be entered requiring the receivers to pay to the interveners severally the amount of their respective judgments, with interest thereon from the date of their rendition, and all costs.