4 Or. 124 | Or. | 1871
By the Court,
The matters discussed on the argument may be resolved into these questions:
Second. Do the particular circumstances disclosed by the transcript in the case justify the plaintiff in suing upon the judgment? .
The respondent claims that the statutory mode of applying for leave to issue execution, and the provisions in relation to filing transcripts and docketing judgments, are intended as a substitute for all other proceedings in the nature of scire facias and for all actions upon domestic judgments. The appellant claims that a judgment creditor has a common law right to sue upon his judgment as soon as it is rendered, and it is expressly stated in two of the New York cases, cited by the appellant, that it is a common law right to sue upon a judgment as soon as the judgment is recovered. (Hale v. Angel, 20 John. 342; Smith v. Mumford, 9 Cow. 26.) The appellant also claims as a general rule that creating a new remedy for the redress of a private injury does not by implication abolish or take away any existing fight of action; and this must be admitted to be the general rule.
If the language used in pronouncing upon the two cases above cited is to be taken without any qualification and received as sound law, and if it is to be deemed expressive of what is sometimes denominated American common law, that is, the general rule of action now in force in this country, except where it is modified by statute, the appellant’s conclusion seems a logical and necessary deduction. What is claimed by the appellant amounts to this: That although the Legislature may have intended to provide a statutory mode of enforcing judgment sufficient to meet every contingency that may arise, yet the Legislature has not interdicted the common law right of action if such right existed. It therefore becomes necessary to determine whether the appellant really has the common law right which he claims, and whether the language of those cases correctly declares the common law.
The reports of those cases are not very full, but they in
It is true that from very ancient times the action of debt on judgment has been recognized as proper, but like every other proceeding at common law, the action was based upon some sufficient reason arising out of the nature or necessities of the case. If it would be a proper construction of the language used in the cases of Hale v. Angel and Smith v. Mumford to treat those cases as holding that the common law sustained the action without any other reason or necessity, and solely to enable the creditor to coerce or intimidate the debtor by threatening him with accumulation of costs, it is believed' that that position is not sustained by any other case to which our attention has been called.
The cases of Ames v. Hoy (12 Cal. 11), and Stuart v. Lander (16 Cal. 374), each declare that the action would lie at common law, and that it is maintainable even though an execution might issue to enforce ’the judgment. Each of these opinions contains language capable of construction quite as favorable to the appellant as that of the case above cited. But in the first case the report shows that the record-book containing the judgment had been destroyed by fire, and in the second case that “the time in -which an execution could be issued had expired, and that there was no means of enforcing the judgment except by action.” If the records in the two cases first above-mentioned could be in
In most of the subsequent cases arising in the State of New York in which the subject of suing upon judgment is discussed, either the discussion relates to foreign judgments, or the disputed right involves the construction of a statute, or the right to sue is based on a ground of some necessity or of some substantial advantage to the creditor. . After an examination of many cases from the same State, we do not find the idea reiterated that at common law an action would lie where no necessity exists, if in fact it ought to be considered as affirmed in these cases. On the contrary, in most of the subsequent cases cited from the State of New York, the proceeding is either based upon a statute, or some special reason appears why the plaintiff cannot otherwise have the full effect of his judgment. In some cases, the plaintiff being an executor, is compelled by statute to sue in order to have the benefit of the former judgment; in others, the new complaint is in the nature of a creditor’s bill; in others, it was necessary to try some issue in regard to the validity of the original judgment. (Cameron v. Fowler, 5 Hill, 306; Burwell v. Jackson, 5 Seld. 535; Dobson v. Pearce, 2 Kern. 156.)
This class of actions had frequently been the subject of legislation in that State prior to 1851; at which time it was provided by statute that leave should be obtained from the Court before bringing an action upon a judgment between the same parties. In regard to that provision, Justice Eoosevelt remarked in Burrough v. Hull, “It was enacted ‘ to prevent the evil of accumulating costs by piling judgment upon judgment.’” And he adds: “The ordinary and, in ninety-nine cases out of a hundred, the proper mode of collecting a debt which is already in judgment is by issuing an execution.” When, however, circumstances have occurred since the judgment was rendered, such, for
Por such reasons, actions upon-judgments continue to be brought; and there is no doubt they have been permitted, from the earliest times of which we have knowledge, for other equally valid reasons. Our statutory proceedings in the nature of scire facias (Civ. Code, § 292) are proceedings in the nature of an action, which afford means of disposing of many, if not all, such newly arisen issues; and these proceedings have the advantage over an ordinary action of retaining the entire record in the same Court, and of preventing unnecessary cost and inconvenience to the defendants. 'Whether they are intended as a substitute for all other actions upon a domestic judgment, as is claimed by the respondent, it is not necessary now to attempt to decide. On the subject of the common law right to the action of debt on judgment, ah opinion of Chief Baron Comyn is mentioned in Clark v. Goodwin (14 Mass. 228), in which the Chief Baron places the right -to bring debt upon judgment, on the ground that at common law the plaintiff had no other mode of recovering interest on his judgment. He states that final process did not authorize the collection of interest accruing after the rendition of the judgment; and it seems to have been his opinion that the right at common law to sue upon a judgment depended upon the necessity of the case, and on the circumstance that full redress could not be obtained without resorting to the action. It is argued that, at common law, the plaintiff was not required to set forth in his complaint any such special grounds, and hence it is inferred that none need exist. But since the Court takes notice of the law governing its own process, the matters mentioned by the Chief Baron are such as need not be set forth in the pleading.
In South Carolina, the action being permitted upon a judgment where the original cause of action did not bear interest, it was said: “At common law no interest can be
If the common law permitted debt upon judgment solely to enable the plaintiff to obtain interest upon his judgment, that reason for the practice would be inapplicable in a State where every judgment bears interest collectible by execution, and where interest can be obtained equally well without an action. It is a part of the common law' that where the reason of the rule fails, the rule fails with it.
It was held in Connecticut, that “an action of debt on a judgment will not lie unless it appears that the plaintiff cannot otherwise have the effect of his judgment.” (Wells v. Dexter, 1 Roote, 253.) And in Alabama it is a good defense to such action to show that execution is still available on the former judgment. (White v. Hadnot, 1 Port. 419.)
A similar opinion was expressed in Lee v. Giles (1 Bailey, 449).
The Court is of opinion that the plaintiff cannot claim a strict right to sue his judgment as often as he may choose without showing any necessity for such course. And if, in coming to this conclusion, it is necessary to disregard the positions stated in the cases of Hale v. Angel, and Smith v. Mumford, I should feel less hesitation in doing so for the reason already expressed in ■ regard to those cases, and because of the peculiar position the question has occupied in that State as compared with other States. We conclude, from all the authorities presented, that neither the common law nor the practice in the various States of the Republic, nor anything inherent in the subject, based on sound reason, gives to a judgment creditor an absolute right of action on a domestic judgment unless such action is necessary in order to enable the plaintiff to have the full benefit of his judgment.
The County Judge violated no rule or precedent established in this State in ruling that the facts set forth in the
It is the opinion of this Court that the judgment of the Circuit Court should be affirmed.