Wells, Fargo & Co. v. Vansickle

112 F. 398 | U.S. Circuit Court for the District of Nevada | 1901

HAWDEY, District Judge

(orally). Is the present action barred by the statute of limitations of this state? Under the .statutes of Nevada an action upon a judgment must be commenced “within six years.” Cutting’s Comp. Ann. Laws (Nev.) § 3718. This provision of the statute constitutes a complete bar to the bringing of this action unless the facts alleged in the complaint, with reference to the proceedings 'had in the suits brought by Lillies M. and James Van-sickle/create such a disability to the commencement of the present action as “shall not be a part of the time limited for the commencement of the action.” There are .numerous sections in the statute upon this subject, but it is only necessary to refer to one. Section 3730 reads as follows:

“When the commencement of one action shall be stayed by injunction or statutory prohibition, the time of the continuance of the injunction or prohibition shall not be part of the time limited for the commencement of the action.”

The plaintiff also relies upon the provisions of section 3334 relating to the rights of pürchasers of real property under execution sales who have been evicted from the premises, or failed to recover possession thereof, “in consequence of irregularities in the proceedings concerning the sale.” I am of opinion that this section, and the authorities cited under similar provisions of the statute, in other states, have no direct application to the facts of this case.

What effect is to be given to the injunction issued in the suits of Lillies M. and James Vansickle against the enforcement of the ex-ecittion upon their property? Was Wells, Fargo & Co., by reason of such injunction, prevented from bringing its action to revive the judgment? It was not enjoined from proceeding to enforce its judgment against the defendant. It was not enjoined from bringing an action to revive the judgment against P. W. Vansickle. It is true that tlie complaint alleges that by reason of the injunction it was estopped “from enforcing its said judgment.” This is a mere conclusion of law, not a statement of any fact to be taken as true by the demurrer. The question must be determined upon the facts stated in the complaint. Pacific Land & Imp. Co. v. Elwood Oil Co., 112 Fed. 4. Could the plaintiff have commenced an action on its judgment against P. W. Vansickle at any time after the execution was issued thereon, but stayed from enforcement upon the property of Fillies M. and James Vansickle, until it was returned unsatisfied? When can an action be brought upon a judgment? There is no authoritative decision in this state upon this question, although it was elaborately discussed by Beatty, C. J., and Leonard, J., in Solen v. Railroad Co., 15 Nev. 313, 322, 325. There is some conflict in the authorities upon this point, but the great weight of the authorities is to the effect that the right of plaintiff to commence an action upon his judgment, in the absence of any statutory provision to the contrary, is not barred nor suspended by the issuance of an execution. 2 Freem. Judgm. § 432, and authorities there cited; 11 Enc. P1. & Prac. 1089-1091, and authorities úiere cited. In Freem. Judgm., supra, the author says:

“The right to bring an action upon a judgment at any time after its rendition, until it is barred by some statute of limitations, though plaintiff retains the power to collect it, if he can, by execution, is almost universally conceded.”

In 11 Enc. PL & Prac., supra, it is said that “no reason for bringing the suit, other than that the judgment remains unpaid, need be alleged,”—citing Denison v. Williams, 4 Conn. 402; Ives v. Finch, 28 Conn. 114. In Fish v. Sawyer, 11 Conn. 545, 548, the court said that the leaning of the decisions of that state “is in favor of the doctrine that, where there is no real, but an apparent, satisfaction of the execution, debt on judgment well lies. * * * There is no satisfaction of the judgment entered upon the record, and nothing to take the case out of the general principle that debt lies upon a judgment which is in full force and unsatisfied.” In Cortez v. Superior Court, 86 Cal. 274, 278, 24 Pac. ion, 21 Am. St. Rep. 37, it was held that an order of the court staying proceedings upon a judgment and order of sale does not operate to suspend the running of the statute of limitations for the enforcement of the judgment. The statute of limitations commences to run from the day the judgment is entered, and when ft has commenced to run it will not cease to do so by reason of any subsequent ^event which is not within the saving of the statute. . Delay in bringing the action is always at the risk of an intervening disability, which may, in the absence of statutory saving, prevent suit being brought at all. Wood, Tim. Act. § 6, and authorities there cited; Davis v. Hart, T23 Cal. 384, 388, 55 Pac. 1060. The issuance of the execution upon the judgment did not stop its running. The injunction issued at the instance of Tillies M. and James Vansickle did not suspend the operation of the statute. There is no statement of any fact in the complaint which, under the statute of this state, prevented the plaintiff from bringing an action upon its judgment at any time before six years from the entry thereof. There was no conduct on the part of the defendant herein, or any one else, which had the effect to stay the running of the statute for any period of time within the six years. The cases cited and relied upon by the plaintiff are readily distinguishable in their facts from the present case, as will be seen by reference to 16 Am. & Eng. Enc. Taw (2d Ed.). 369,—where most of the cases cited by plaintiff are referred to,—which reads as fob lows:

“One of the most frequent examples of the exercise of this jurisdiction arises where the prosecution of an action is enjoined, and the cause of action is barred by the statute of limitations because of the operation of the injunction. An injunction does not stop the running of the statute; and as it would be manifestly inequitable to the party whose action is enjoined to lose his remedy because of the injunction, equity will enjoin the defendant in the action at law from setting up the statute of limitations as a defense.”

If the plaintiff had been enjoined or prevented from enforcing his judgment, section 3730, Cutting’s Comp. Ann. Raws, would apply; and it has frequently been held that “the time during which a plaintiff is prevented from bringing his suit by an injunction which prohibits him from suing is not to be counted against him, even when the general statute of limitations makes no provision for such cases. It has been suggested, however, that the plaintiff’s recourse in such a case is by a proceeding^in equity to enjoin the defendant from pleading the statute.” 19-Am. & Eng. Enc. Raw (2d Ed.) 218, and authorities there cited; Wood, Rim. Act. § 243. The rule relied upon by plaintiff is founded upon the general principles of equity that an injunction will issue for the purpose of preventing a defendant in an action at law from setting up unconscientious and inequitable defenses. But in the case at bar the plaintiff’s right of action was not enjoined. The defendant had the unquestioned right to plead the statute of limitations, and under the facts which we have stated it cannot be said that his action in pleading this defense is either “unconscientious or inequitable,” for he had not enjoined the plaintiff from enforcing its judgment, and had not performed any act which prevented the plaintiff from commencing an action to revive the judgment.

Demurrer sustained, and action dismissed.