289 P. 1035 | Mont. | 1930
Lead Opinion
The outstanding point for consideration of this court is whether or not a dormant and unenforceable judgment of a sister state can be made the basis of an action in this state. The plaintiff seemed to proceed upon the theory that the action upon the judgment in this state was tantamount to an action to revive the judgment and that such action could proceed in Montana as well as in Nebraska. That is not the law, which is well epitomized in the text in 34 C.J. 1106, wherein it is said: "By the weight of authority, a judgment which has been allowed to become dormant under the laws of the state where it was rendered cannot be enforced by an action in another state, since to allow such enforcement would be to give effect to that which had no effect in the state where the judgment was rendered." (Chapman
v. Chapman,
The Nebraska supreme court, in determining the meaning of the phrase "dormant judgment" as used in its statute, declares inWhite v. Ress,
An action on the judgment does not obtain in Nebraska. It is revived in the manner set forth in Wright v. Sweet,
Speaking of the effect of a revivor proceeding, which any proceeding in Nebraska amounts to, the Nebraska court says inSt. Paul Harvester Co. v. Faulhaber,
The phrase "dormant judgment" has received definition a number of times. See the following cases: Denny v. Ross,
It is settled law that a judgment of a sister state will not be given effect beyond the effect given that judgment under the laws of the sister state where rendered. (15 Stand. Ency. Proc. 649; Sistare v. Sistare,
With these principles in mind, it is easy to demonstrate to this court that the Nebraska judgment being dormant at the time suit was brought upon it here, cannot be revived here without giving to the judgment a greater force and effect than it has in the state of Nebraska.
The Nebraska supreme court has put itself clearly on record with regard to the status of this judgment. In the first place, we have seen the judgment cannot be revived (a) because the time has gone by, and (b) because a proceeding of revivor would have to be brought in the court where the judgment was rendered. Now, the court holds that a judgment is barred by the statute of limitations so far as an action is concerned, unless the action be brought within five years from the date of entry of the judgment. (Holmes v. Webster,
It has been repeatedly held by the court of Iowa and other courts that a suit on a dormant judgment will lie in the sister state. (David v. Porter,
The only question presented in disposition of this appeal is whether or not a dormant judgment of the sister state of Nebraska may be made the basis of this action in Montana.
We approach decision of the question presented bearing in mind[1-3] the fundamental rules that full faith and credit shall be given to the judicial proceedings of a sister state (sec. 1, Art. IV, Const. U.S.), and that the vadidity of a judgment must be determined by the laws of the state where rendered. (Adams
v. Stenehjem,
The statute of Nebraska pleaded provides: "If execution shall not be sued out 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 shall become dormant, and shall cease to operate as a lien on the estate of the judgment debtor." (Sec. 1480, Cobbey's Ann. Stats. Neb. 1903.) And: "If a judgment become dormant, it may be revived in the *46 same manner as is prescribed for reviving actions before judgment." (Sec. 1463, Id.)
At the trial it was stipulated between the parties "that no execution was ever issued on the judgment sued upon in this action; and further that no action or proceeding of any nature whatsoever has ever been instituted in the courts of Nebraska for the revival of said judgment or upon said judgment." The record does not show when this action was instituted; however it appears that the plaintiff's amended complaint was filed on August 7, 1928, a little more than seven years after the rendition of the Nebraska judgment sued upon.
Our Montana statute (sec. 9028, Rev. Codes 1921) gives a right of action on a judgment within ten years; whereas, the lien of a judgment is expressly limited to six years. (Id., 9410; Marlowe
v. Missoula Gas Co.,
In construing and applying the statutes pleaded the supreme court of Nebraska has held that section 1480, above, is a statute of limitations and that an action on a judgment is barred in Nebraska after the lapse of five years. (Armstrong v.Patterson,
Since the action could not be successfully maintained in the Nebraska courts upon a plea of bar by limitation, the same *47 defense here pleaded precludes a recovery. Accordingly, the judgment rendered was erroneous. The petition for a rehearing having served its useful purpose, a rehearing is denied. The former opinion is withdrawn and this one substituted.
The judgment is reversed and the cause remanded to the district court of Fergus county, with direction to enter judgment dismissing the plaintiff's complaint. Remittitur will issue forthwith.
MR. CHIEF JUSTICE CALLAWAY and ASSOCIATE JUSTICES MATTHEWS and FORD concur.
Dissenting Opinion
In this action the only statutes of the state of Nebraska pleaded in the answer are sections 1480 and 1463, quoted in the majority opinion. The cases of Armstrong v. Patterson,
Section 7567 was not here pleaded, but, if it may be noticed judicially, then likewise section 7577, Nebraska Revised Statutes of 1913, should receive judicial notice. That section provides: "If, when a cause of action accrues against a person, he be out of the state, or shall have absconded or concealed himself, the period limited for the commencement of the action shall not begin to run until he come into the state, or while he is absconded or concealed; and if, after the cause *48 of action accrues, he depart from the state, or abscond or conceal himself, the time of his absence or concealment shall not be computed as any part of the period within which the action must be brought." Here the record discloses that defendant has not resided or been in the state of Nebraska since the rendition of this judgment, except for two or three months.
By the great weight of authority, under statutes such as section 7577, absence of the judgment debtor from the state tolls the running of the statute of limitations in an action on a judgment. The cases pro and con are listed in the carefully considered and well-prepared opinion of Mr. Justice Burke, speaking for the supreme court of North Dakota in Union Nat.Bank of Grand Forks v. Ryan,
When all the statutes of Nebraska are considered in the light of the facts here shown, the judgment in question is not barred by limitations by the laws of that state. I have considered this question from the point of view entertained by the majority that the laws of Nebraska control as to the statute of limitations, although the rule seems to be that the question whether a judgment is barred by limitations must be determined by the laws of the forum. (34 C.J. 1109.) But, whichever law should be applied, the result is the same. Action on the judgment is not barred by either the laws of Nebraska or Montana, under the facts here shown.
Has plaintiff the right to maintain an action on the judgment? I think it has. The supreme court of Nebraska, in Snell v.Rue,
