Peters v. Vawter

10 Mont. 201 | Mont. | 1890

DeWitt, ,J.

The recent decision of this court in Wallace v. Lewis, 9 Mont. 399, restricts the inquiry herein to narrow limits. That case holds that a motion is an application to the court for an order; that the court must be moved to grant the order, and when so moved, the proceeding is a motion. In this view, no motion was made for leave to issue execution, in the ease at bar, until after December 8, 1889, which was after the expiration of six years from the entering of the judgment, and after the expiration of the period respectively limited in sections 41, 307, and 312 of the Code of Civil Procedure.

We are, therefore, left only the inquiry, whether the court may graut leave to issue execution after the expiration of the period within which section 312 seems to limit its issuance, and, incidentally, after an action upon the judgment is barred (§ 41, Code Civ. Proc.), and after the lieu of the judgment is lost. (§ 307, Code Civ. Proc.) These two latter sections we mention only as statutory suggestions, in pari materia, as to the length of' life of a judgment. In other words, are these laws an absolute limitation of the life of a judgment, as is contended by the respondent, and held by the District Court? or is the appellant’s position correct, that not only may execution issue as of course within five years, and by motion in the sixth year, but also, upon motion, under section 349, at any time after six years? If appellant’s construction of the statutes be correct, then a judgment becoming dormant at the end of the fifth year may, after that time, and also for all time in the future, be vitalized sufficiently to support an execution by motion; that is to say, that even after six years the judgment only sleeps, but lives forever.

Appellant’s position is based upon the ancient doctrine of scire facias to revive a judgment. But that writ is abolished. The remedy formerly obtained thereby is now provided by the statutes heretofore cited, and the rights of the judgment creditor must be ascertained by a construction of these statutes, rather than by the authority or reason of the cases decided under the practice of scire facias. Appellant calls our attention to the fact that when section 349 was enacted, on February 13, 1874, the limitation of section 312 was five years, and that section 349 was meaningless at the date of its enactment, unless it intended that execution might be obtained by motion even after the expiration of its life, as limited by section 312, which was then five years. Then he argues that such intent being granted, that when section 312 was made to read “six years,” in 1877, the original intent of section 349, to the effect that execution might be obtained by motion after the expiration of the apparent five years’ life of the judgment, should also be applied to the effect that execution might be obtained after the expiration of this newly created six years’ life. For the purposes of this decision, we may grant that appellant’s construction of section 349 correctly sets forth the intent of the act when passed in 1874. (See Mason v. Cronise, 20 Cal. 211.) But a later act, section 312, as amended in 1877, must operate upon the construction of section 349 of 1874.

Chief Justice Cooley, in Parsons v. Circuit Judge, 37 Mich. 287, says that it is true, as a rule of construction, that “ a statute amended is to be understood in the same sense exactly as if it had read from the beginning as it does as amended.” Of course there are apparent exceptions to this rule, which, however, are not here of interest. Apply this rule to section 312, as amended in 1877, to read six years instead of five. Then to section 312 apply section 349, and there is no reason to hold that the two sections, in pari materia, do not mean just what they say, viz., that execution may issue at any time within six years in the manner prescribed by law, that is to say, within five years, of course, and in the sixth year upon motion, and not otherwise, or at a later period. Again, in 1877, when the legislature enacted section 312 as it now stands, they had before them on the statute book the provisions of section 349, allowing execution upon motion after five years, and they deliberately, by section 312, limited all executions to six years. The legislature had the power to do this. They did it in the light of section 349, and we cannot doubt that they intended what their words declare.

We are. of opinion that the judgment in the case before us was dormant from December 8, 1888, until December 8, 1889, and that on December 8, 1889, it died in its sleep, without experiencing the vivifying treatment of a motion for execution or an action at law. (See 1 Freeman on Executions, § 27 a, citing George v. Middough, 62 Mo. 549; Lyon v. Russ, 84 N. C. 588; Jerome v. Williams, 13 Mich. 521; McDonald v. Dickson, 85 N. C. 248; McGrew v. Reasons, 3 Lea, 485; Cannon v. Laman, 7 Lea, 513.) The New York authorities cited in the text of that author are not in point by reason of the difference in the statutes. (See, also, Bowers v. Crary, 30 Cal. 622; Mason v. Cronise, 20 Cal. 211; Stout v. Macy, 22 Cal. 647.)

The judgment of the District Court is affirmed.

Blake, C. J., and De Witt, J., concur.