39 Kan. 334 | Kan. | 1888
The opinion of the court was delivered by
On December 30,1874, the American Clock Company recovered a judgment before a justice of the peace of Marshall county, against G. Schultz, for $174.90, and costs taxed at $6.95. On January 2,1875, an execution was issued on the judgment, upon which there was collected $11.50. An alias execution was issued on January 1, 1880, which was returned unsatisfied. No execution was issued upon the judgment within five years after the last date; but on December 10,1885, the American Clock Company instituted a proceed
We are referred to the case of Gruble v. Wood, 27 Kas. 535, as holding that a dormant judgment cannot be revived without the consent of the adverse party upon a notice given by the service of an ordinary summons. In that case it will be found that the summons fell far short of meeting the requirements of the statutory notice necessary to the revivor of a dormant judgment. It was in the ordinary form, and simply notified the adverse party that they had been sued, and unless they answered by a stated time the petition filed would be taken as true and judgment rendered accordingly. The time when the application would be heard and the nature and terms of the order asked for were not stated; and for this reason the notice was held not to be in substantial compliance with the statute. It is to be observed that the application for revivor in that case was an ordinary proceeding under the code, based upon a motion, and the motion fell so far short of the statutory requirement as not to give jurisdiction to the court. A dormant judgment may be revived by a formal action brought for that purpose, and upon a notice given by summons; or it may be done in the more summary and informal method of motion and notice prescribed by the code. (Kothman v. Skaggs, 29 Kas. 5.)
It is further insisted that the order of revivor is invalid for the reason that an abstract of the judgment had been filed in the district court prior to the time the order was made. There is attached to the record filed in this court a certified copy of an abstract of the judgment, which purports to have been filed in the district court on May 15,1885; but it was not included in the bill of exceptions brought up to the district court, and therefore was not before that court for review. Only such questions as were presented and determined by that tribunal can be considered here; and therefore the effect of the abstract, if it was filed, is not before us. Even if the abstract was in the case, it may be questioned whether it would be effectual to transfer the judgment from the justice’s to the district court. According to the claim made by the plaintiff in error, the abstract of the judgment was not filed until May 15, 1885, and at that time the judgment had been dormant
The judgment of the district court will be affirmed.