Wakeman v. Peter
152 P. 455
Okla.
1915
Check Treatment

The only question presented by the briefs is: Was the cause of action barred by the statute of limitation, the plaintiff in error contending that it is an action on a judgment of the county court, and therefore not barred until five years from the date of the judgment, and the defendant in error contending that it is an action on an express or implied contract, not in writing, and is therefore barred in three years. Rev. Laws 1910, section 6190, under "Probate Procedure," provides: *Page 641

"The proceedings of this court are construed in the same manner, and with like intendments, as the proceedings of courts of general jurisdiction, and to its records, orders, judgments and decrees, there are accorded like force, effect and legal presumption as to the records, orders, judgments and decrees of district courts."

In Greer v. McNeal, 11 Okla. 519, 69 P. 891, it is held that the probate court is, upon all matters upon which it is authorized to deal, and of which it has jurisdiction, a court of record and of final authority, and its final judgments are absolute, unless appealed from, and this case has been followed in Southern Surety Co. v. Burney, 34 Okla. 552, 126 P. 748, 43 L. R. A. (N. S.) 308, and Shipman v. Brown, 36 Okla. 623,130 P. 603.

But an action on a judgment is not an action on a contract, express or implied, within the meaning of these words as used in the statute. In Morley v. Lake Shore Railway Company,146 U.S. 162, 13 Sup. Ct. 54, 36 L.Ed. 925, in passing on the question whether a judgment is a contract, the court says:

"The most important elements of a contract are wanting. There is no aggregatio mentium. The defendant has not voluntarily assented or promised to pay. 'A judgment is in no sense a contract or agreement between the parties.' "

And see McDonald v. Dickson, 87 N.C. 404; Pease v. Howard, 14 Johns. (N.Y.) 479.

The cause of action therefore, was not barred.

We recommend that the judgment be reversed, and the cause remanded for a new trial.

By the Court: It is so ordered. *Page 642