122 Neb. 817 | Neb. | 1932
This is a case brought in the district court for Lancaster county by the plaintiff, appellant herein, against Trevelyan E. Gillaspie and the Occidental Building & Loan Association, defendants and appellees herein, alleging that on September 18, 1918, the defendant Occidental Building & Loan Association recovered a judgment in the district court for Lancaster county against the defendant Trevelyan E. Gillaspie, in the sum of $1,126.57 with interest at the rate of 10 per cent, per annum from the date of said judgment; that on December 22, 1920, the defendant Occidental Building & Loan Association assigned said judgment in writing to the plaintiff Gertrude D. Reed; that said assignment was placed of record on September 5, 1925, and that the defendant Gillaspie had actual knowledge of said assignment on and after its execution; that after the recording of said assignment, with full knowledge of the same by the defendant Gillaspie, the Occidental Building & Loan Association executed and delivered to said Gillaspie a release of said judgment which was filed with the clerk of the district court for Lancaster county on September 1, 1929.
Plaintiff further alleges that said judgment became dormant in September, 1923; that defendant knew that plaintiff was endeavoring to locate property subject to execution belonging to Gillaspie; that she had made preparation to revive said judgment, and that she would enforce said judgment against the defendant Gillaspie. Plaintiff thereupon prayed for judgment for damages against both defendants in the sum of $1,126.57 and interest and costs.
From the judgment of the lower court sustaining a general demurrer and dismissing plaintiff’s petition, the plaintiff appeals.
The assignment through which the plaintiff claims a right in the original judgment is as follows: “For one-third of the original judgment, to be paid me when the judgment is collected, or for one-third of the amount collected, if less than the original judgment is accepted in settlement, I hereby assign to Gertrude D. Reed, all rights and interests in and to the judgment recovered in the action, the Occidental Building & Loan Association of Omaha v. Trevelyan Gillaspie, docket 61, page 197, district court for Lancaster county, Nebraska, for $1,126.57.
“And hereby authorize said assignee to collect said judgment with interest and costs from date of judgment.
“All said proceedings to be at the risk and expense of said assignee.
“Dated this 22d day of December, 1920.
“Occidental Bldg. & Loan Ass’n.
“R. A. McEachron, Y. P.”
If the theory of the plaintiff was that it is a suit upon the judgment of September 18, 1918, she cannot recover for the reason that the statute of limitations is a bar to a recovery thereon. Section 20-1515, Comp. St. 1929, is as follows: “If execution shall not be sued but within five years from the date of any judgment that now is or may hereafter be rendered in any court of record in this state, or if five years shall have intervened between the date of the last execution issued on such judgment and the time of suing out another writ of execution thereon, such judgment and all taxable costs in the action in which such judgment was obtained, shall become dormant, and shall cease to operate as a lien on the estate of the judgment debtor.” It is clearly the law of Nebraska that where it appears upon the face of the petition that the cause of action is barred by the statute of limitations, and there are no allegations tolling the statute, a general demurrer can be properly interposed to such cause of action. Pohle v. Nelson, 108 Neb. 220; Carden v. McGuirk, 111 Neb. 350. This court has previously held that a domestic judgment is a specialty and barred by the statute of limitations within five years from the date of the judgment, the language of the court being as follows: “There seems to be some inconsistency in providing by statute that an action on a domestic judgment is barred in five years, and that it may nevertheless be revived and enforced at any time within ten years. But this inconsistency is not so great as to provide that there is no limitation, and that an action can be maintained thereon when it has been dormant for a length of time ‘whereof the memory of man runneth not to the contrary.’ We are, upon further consideration, convinced that the legislature never intended to
It is therefore clear that in the absence of a revivor of the judgment of September 18, 1918, no action could be maintained upon said judgment.
Plaintiff contends that said petition is one sounding in fraud and that she should be permitted to recover on that theory. An examination of the assignment clearly discloses that it was an assignment for collection only and not an absolute sale of the judgment. The assignment itself shows that plaintiff paid nothing for the same, but was to receive only a share of the amount collected. The assignment also specifically authorizes said assignee to collect said judgment with interest and costs at the risk and expense of said assignee. This all implies that said assignment was made in order that plaintiff might make the collection of the judgment for the Occidental Building & Loan Association. Even if the assignment amounted to an absolute sale of the judgment, the plaintiff under the facts disclosed in her petition could not recover. She alleges in her petition that the assignment was on record at the time the release of the judgment was executed by the Occidental Building & Loan Association to the defendant Gillaspie. This being true, the plaintiff could treat the release as of no force and effect and proceed against the original debtor in the same manner as if no release had been made. “Where the judgment has been assigned to a third person, the debtor, after notice of the assignment, must pay to the assignee; but a judgment debtor who learns that the judgment has been assigned acts at his peril in the payment thereof to any party as assignee
The record in this case discloses that demurrers have been sustained to the first petition filed, the amended petition, and to the second amended petition. Under the circumstances, the trial court did not err when he dismissed the case. For the reasons hereinbefore set out, the judgment of the trial court is
Affirmed.