5 Colo. App. 224 | Colo. Ct. App. | 1894
delivered the opinion of the court.
This was a proceeding under chapter 19 of the code to revive a judgment. The petition contained all the requisite averments to entitle the petitioners to maintain the proceeding. From it and the proof it appears that in October, 1874, W. B. Daniels & Co., recovered a judgment for -1450 and costs against Russell & Swink, who were then copartners. In the November following an execution was issued, which was returned in February entirely unsatisfied. The proof
Under the act concerning the revival of judgments, such causes are triable to the court which hears and determines the question of fact, to wit, whether the judgment remains unsatisfied in any part, and, on its conclusion respecting this proposition, renders the judgment to revive, or denies the petition.
The present claim is so stale and offensive in its antiquity that a judgment of revival should not be entered unless the court is clearly satisfied that the judgment remains unpaid. As against claims of such ancient origin, the presumption of payment is exceedingly strong, and less evidence is requisite to justify the court in refusing to revive so old a judgment than is necessary to entitle it to enter a judgment in an original suit between the parties. Mercantile houses like Daniels & Co. are not wont to permit judgments against solvent persons and solvent firms to remain unsatisfied and unenforced for a period of years, if their claim be just and collectible. It is quite possible that the present attempt to enforce this judgment may be the result of a change in the personnel of the old firm of Daniels & Co., and that the facts concerning the transaction are not within the knowledge and recollection of the firm, as.now constituted. We do not intend to hold that the absolute presumption of payment which arises as a matter of law after the lapse of the time which may be prescribed by some statute exists' in the present case, but simply that the length of time is such that the presumption will aid proof which may be more limited, perhaps, than would be absolutely necessary to entitle the court to render a judgment in an original action based on the same facts. There is considerable contrariety of opinion in the decisions as to what constitutes a bar in an action of this sort. Most states have a statute on the subject. Other states have established a rule of judicial construction which has been followed, so that it may be deemed settled. Yarnell v. Moore, 3 Cold. 173; Baker v. Stonebraker, 36 Mo. 338;
We do not accept the court’s conclusions respecting the right of appeal. The matter is not one of any consequence to the profession, and what we decide concerning the right of appeal in 1874 is not likely to be a matter of any future interest to other litigants. It is not probable that any other case will arise, calling for a construction of the statutes on the subject. We shall therefore not discuss the question with that fullness which would be essential if we were establishing a precedent. It will be enough to refer to the decisions and the law, and to state our general judgment concerning the matter. Gen. Laws Territory Colorado, 1872, p. 105; same, 1874, p. 217 ; Rev. Stats. Colo. 1868, p. 527. These acts, together with the act of congress approved May 4,1870, which is referred to in the case of McClure v. Sanford, 3 Colo. 514, cover the matter of appeals, and jurisdiction of the probate and district courts of the territory. In general it may be said that the right of appeal originally lay from what was then termed the probate courts of the territory to the district court, and that the latter heard and tried the case in very much the same fashion as district courts now hear and determine such appeals when they are taken from our present county courts. The act of 1872 undoubtedly
There is still another basis on which the court might well adjudge, should it find the requisite facts, that there was a sufficient consideration moving between the parties to make the agreement operative to estop Daniels & Co. to enforce the present judgment. The conclusion at which the trial court arrived concerning the preceding legal proposition may have led it not to weigh and consider the evidence with much
It is our conclusion that the right of appeal lay, and the executed agreement not to exercise it furnishes a sufficient consideration to make the compromise a valid one as against the Daniels & Co. judgment. We likewise conclude that, if the court shall find the facts concerning the disposition of the Sweeney claim to be as indicated bjr the present record, this conclusion would establish the existence of another sufficient consideration to uphold the settlement. The judgment will be reversed and the cause remanded.
Reversed.