Tierney v. Evans, 92 Neb. 330

Tierney v. Evans

92 Neb. 330 | Neb. | 1912

Sedgwick, J.

In December, 1883, the St. Paul Harvester Works recovered a judgment in the county court of Boone county against Patrick Tierney. In August, 1909, the St. Paul Harvester. Works filed in that court a motion and affidavit for a revivor of the judgment. A conditional order of revivor was made by the court, which was served upon this plaintiff. The sheriff’s return upon the order shoAVS that he served it personally upon “the within named Pat Tierney.” This plaintiff made no appearance in tire proceedings. Upon this return an order of revivor Aims made by the county court. Execution was then issued upon the judgment, and, the sheriff being about to levy upon the property of this plaintiff, this action Avas brought in the district court for Boone county against the sheriff and the county judge to restrain them from enforcing the judgment against this plaintiff. A temporary injunction was alloAved, and upon the trial the injunction was made perpetual, and the defendants have appealed.

The plaintiff upon the trial testified that at the time of the entering of the judgment he was not of legal age, and was residing in the state of Missouri; that two or three years afterwards he removed to Madison county, in this state, where he resided for 19 years, and then removed to Boone county, AA'liere he had resided about 4 years at the time the conditional order of revivor was served upon him; that he never had any transactions AAdiatever with the St. Paul Harvester Works, and Avas never sued by them, and that no summons had ever been served upon him at their suit. In this testimony he was supported by several witnesses, from which it appears that this plaintiff Avas not the party against whom the judgment of the St. Paul Harvester Works was rendered. The defendants offered no evidence upon this question, and rested their case upon the proposition that this plaintiff Avas bound by the order of revivor, and urns estopped to deny that the judgment was against him. This posi*332tion of the defendants is wholly untenable. A judgment against one who has not been served with process and has made no appearance is not merely voidable; it is absolutely void. As said in McKinney v. Frankfort & State Line Co., 140 Ind. 95, it “is a mere nullity.” The evidence clearly shows that the judgment against Patrick Tierney Avas not a judgment against this plaintiff, Patrick J. Tierney. This plaintiff was never sued nor served, and as against him the judgment is a nullity. The proceeding in this state to revive a dormant judgment is not a new action, but is a continuation of the old. It takes the place of the old common law writ of scire facias for that purpose. This mas early determined, in this state in Eaton v. Hasty, 6 Neb. 419, where the authorities are cited and the matter fully considered. In that case it was sought to make the order of revivor determine certain righis of the parties. The effect of a judgment of revivor is stated in the first paragraph of the syllabus: “A judgment of revival is merely a continuation of the original action, and continues the. vitality of the original judgment with all its' incidents from the time of its rendition.” This conclusion was cited and approved by this court in Bankers Life Ins. Co. v. Robbins, 59 Neb. 170. In this latter case the court said: “It is not the commencement of a civil action, but the continuation of an action previously commenced. The object in view is not to obtain a judgment, but to obtain permission of the court to execute a judgment already in existence.”

Other interesting and important questions are presented in the brief, but are not necessary to this decision. There never having been any judgment against this plaintiff, and the order of revivor having no other effect than to renew the former judgment, there was no authority to levy the execution on the property of this plaintiff, and the judgment of the district court is

Affirmed.