124 Ky. 539 | Ky. Ct. App. | 1907
Opinion of the Court by
Affirming.
On October 9, 1885, the People’s Bank of Kentucky recovered a judgment in the Louisville Chancery Court against James P. Barbour, Richard N. Barbour, and J. D. Barbour for the sum of $5,000. An execution was issued on the judgment on April 14, 1888, which was returned no property found. After this the bank assigned the judgment to W. H. Slaughter, and he on November 14, 1899, assigned it to Elizabeth O’Nora Barbour. Richard N. Barbour died February 22, 1902, and on April 13, 1903, Elizabeth O’Nora Barbour had an execution issued on the judgment against James P. Barbour, Richard N. Barbour, and J. D. Barbour, which was levied on their interest in a certain tract of land in Jefferson county. On the 19th of October, 1905, Elizabeth O’Nora Barbour, upon notice to Martha C. Barbour and Mattie O. Barbour, the real representatives of Richard N. Barbour, moved the court to revive the judgment against them. The court overruled the motion, and she appeals.
By section 2514, Ky. Stat., 1903, an action upon a judgment or decree of any court of this State must be commenced within 15 years after the cause of action first accrued, the period to be computed from the date of the last .execution thereon. The judgment was recovered in 1885. An execution, as stated, was issued on it on April 14,1888, but this was more than 15 years before the motion before' us was made-. An execution was last issued on the judgment on April
Section 405 of the Civil Code of Practice provides: “The death of a defendant shall not prevent the issuing of an execution against a surviving defendant.” In 1 Freeman on Executions, section 36, it is said: “When one of several judgment defendants dies, satisfaction may be sought solely by seizing the persons or levying on the personal estate of the survivors, in which' cases no scire facias is needful to authorize the issue of execution. But it is otherwise if the heir of the deceased is to be pursued. In order that the execution may conform to the judgment, it issues against all the defendants, although it, for all practical pur
Judgment affirmed.