47 Iowa 269 | Iowa | 1877
Plaintiff’s petition declares upon a judgment rendered in 1863, by the District Court of Allamakee county. It is not averred in the petition that plaintiff has obtained leave to prosecute the action, required by Code, § 2521, which is in these words: “No action shall be brought upon any judgment against a defendant therein, rendered in any court of record of this state, within fifteen years after the rendition thereof, without leave óf the court, for good cause shown, and on notice to the adverse party. * * * *”
The section of the Code just referred to differs from the corresponding section of the Revision, 2876, which provided that a petition could be assailed by demurrer when it does not state “facts sufficient to constitute a cause of action.” Under such provision, it could well be held that a petition properly pleading a record of a judgment as a cause of action would be sufficient as against a demurrer. While the leave to prosecute the suit, though not pertaining to the causa of action, but to the right to prosecute the action,' should be alleged, yet the want of averment of such leave could not be taken advantage of by demurrer; the defect should be assailed by motion. The New York case cited by plaintiff’s counsel was decided under a statute similar to the section of the Revision referred to. See Finch v. Carpenter, 5 Abbott’s Pr. Rep., 239.
■ Prior to the statute in question, plaintiff had two remedies upon his judgment: 1. He could enforce it by execution. 2. An action could have been maintained upon it. The statute .takes away the second remedy. It in no manner affects the obligation of the judgment. The judgment stands in all the vigor and force it possessed before. It can be enforced against all the property and rights of the defendant that were subject to it before the statute. No delay in enforcing it is caused by the statute. How can it be said that its obligation is impaired? The statute simply takes away one remedy upon the judgment, but leaves one that is complete.
The foregoing discussion disposes of all the questions made in the case. In our opinion the demurrer was erroneously overruled.
Reversed.