Schuyler County Bank v. Bradbury

56 Kan. 355 | Kan. | 1896

The opinion of the court was delivered by

Martin, C. J.

: On September 10, 1884, the plaintiff recovered a judgment against Moses T. Bradbury ill the district court of Jewell county, Kansas, for $3,161.53, together with interest and costs.' No execution was issued thereon. The plaintiff, on August 25, 1890, commenced an action in the district court of Decatur county against Bradbury and others in the nature of a creditor’s bill, and for the revivor of said judgment. Demurrers having been sustained to the petition and the first amended petition respectively, the plaintiff filed its second amended petition, March 31, 1891, dropping out all the parties except Bradbury, pleading said judgment of the district court of Jewell county, and praying a judgment thereon. The defendant pleaded, among other things, the bar of the five-years statute of limitations. Whether a dormant judgment rendered in one county may be revived by action in another is a question suggested, but not raised, by the record. The plaintiff’s right of action was barred by the provisions of section 18 of the code of civil procedure, it not being claimed that either party was under any disability, nor that the defendant was a non-resident of or absent from the state at any time between September 10, 1884, and'August 25, 1890. (Mawhinney v. Doane; 40 Kan. 676.) The plaintiff relies upon Baker v. Hummer, 31 Kan. 325, which holds that an action may be maintained on a dormant domestic judgment in this state if commenced within one year after dormancy; but in that case the action was not barred by the statute of limitations, for the judgment was rendered March 25, 1876, and in the following autumn the defendants removed from Kansas to Illinois, and were continuously absent from this state from that time forth to the commencement of the action. The only difficulty about that judgment was that it had become dormant; but the Jewell county judgment, upon which the plaintiff sued, besides being dormant, was barred by the statute of limitations, for a right of action accrued on it as soon as it was rendered. (Burnes v. Simpson, 9 Kan. 658, 664, 667 ; Hummer v. Lamphear, 32 id. 439, 444; Hale v. Angel, 20 Johns. 342; 2 Freem. Judg. [4th ed.] §432.) Dormancy is curable within one year, but what shall restore to life a right of action barred by the statute of limitations other than the act or default of the defendant?

The judgment of the district court must be affirmed.

All the Justices concurring.