28 Wash. 194 | Wash. | 1902
The opinion of the court was delivered by
— The appellant, in 1892,' obtained a judgment against the Seattle Consolidated Street Railway Company, which judgment was affirmed by this court on the 16th day of June, 1893, and judgment entered on the appeal bond against the respondents, who were sureties thereon. Sears v. Seattle, etc., Street Ry. Co., 6 Wash. 227 (33 Pac. 389, 1081). Afterwards, and before the remittitur went down, the sureties moved in this court for a modification of the judgment entered against them, showing that the entry was for a greater amount than they had obligated themselves to pay by the appeal bond. This motion was granted by the court; the order being to set aside the former judgment and enter a new one, “as of the same date” for the amount of the obligation named in the bond. This order was made on November .18, 1893, and entered in this court on the same day. 7 Wash. 286 (34 Pac. 918). The remittitur thereon was sent down and filed for record in the superior court on November 21, 1893. On July 3, 1899, the judgment creditor (appellant here) filed a motion in the superior court to revive the judgment, averring therein that more than five but less than six years had elapsed since its entry, and that the same had not been fully paid. A demurrer interposed to the motion having been overruled, the respondents answered, denying certain averments contained in the motion, and pleading affirmatively that the proceedings had not been begun within six years after the date of the rendition of the judgment, and certain facts tending to show an accord and satisfaction. No reply was filed to the answer within the statutory time, and judgment was afterwards entered denying the motion to revive. The appellant moved to vacate this last men
The statutes of this state limit the lien of a judgment to five years from the date of its rendition, whether the same be a judgment of this court, the superior court, or that of a justice of the peace; providing, however, that, where an appeal is taken to the supreme court on any judgment “the date of final judgment in the supreme court shall be the time from which said five years shall commence to run.” Bal. Code, § 5132, 5143. The statute further provides that upon the affirmance of a judgment on appeal for the payment of money, and in 'certain other cases, the supreme court shall render judgment against both the'appellant and the sureties on the appeal bond for the amount of the judgment appealed from in all cases where the bond is “conditioned so as to support such judgment”; that is to say, is conditioned according to the requirements of the statute for a stay of execution. Bal. Code, § 6523. It is also provided that the supreme court may, when it affirms a judgment appealed from and enters judgment upon the appeal bond, cause execution to issue on the judgment direct, or it may remand it to the superior court to have it carried into effect; and when the court makes the latter order such judgment, when certified and entered on the records of the court below, has the same force and effect as if rendered by that court Id. § 6525. It is clear from these provisions of the statute that a judgment creditor, in a case where the judgment appealed from is accompanied by a bond conditioned to perform the judgment, and is affirmed by this court, has two judgments for the same cause of action, — the one which this court affirms, and
“The rendition and the entry of a judgment are entirely different things. The first is a purely judicial act of the court alone, and must be first in the order of time, while the entry is merely evidence that a judgment has been rendered, and is purely a ministerial act.” 18 Enc. PI. & Pr. 430. '
It may be well to remark here that the Code throughout seems to recognize this distinction. While it speaks in many places of the rendition and the entry of a judgment, we have found no instance where it can be said that the one has been used as if synonymous with the other.
It is concluded, therefore, that the judgment sought to be revived was rendered in this court on June 16, 1893, and that the motion to revive the same came too late. This conclusion renders it unnecessary to discuss the question suggested by the other branch of the case.
The order appealed from is affirmed.
Reavis, C. J., and Hadley, White, Mount, Anders, and Dunbar, JJ., concur.