White & Cochran v. Moore

100 Ky. 358 | Ky. Ct. App. | 1897

CHIEF-JUSTICE LEWIS

delivered the opinion oe the court:

August 14, 1872, White & Cochran obtained a judgment against L. and M. A. Moore for $584.55, upon which, September 28, 1872, an execution was issued, and in due time returned with the official endorsement, “no property found.”

On and not until February 16, 1890, another was issued, which was returned with this official endorsement: “Received of M. A. Moore $200 on the within execution, and I return the within execution by consent of plaintiff April 20, 1891.”

And now this is an action in equity by M. A. Moore, one of the original defendants, in which he asks judgment quashing the third execution, issued February 2, 1894, vacating the levy made under it, and prohibiting plaintiffs in the original action from proceeding further by execution.

As more than fifteen years had elapsed after return of the first before the second execution was issued the statute of limitation operated as a bar to the latter, as also to the one issued in 1894, unless by one of the modes suggested for appellant, running of the statute was suspended, so that the time antecedent to the date of the second execution is not to be counted in computing the bar.

It has been repeatedly held by this court, and may be considered settled doctrine, that a partial payment made on a bond or note within the statutory time operates as a suspension of the running of the limitation between the accrual of the cause of action on the instrument and date of that payment. And we think if there had been a partial payment of the judgment voluntarily made by the defendants within fifteen years after August 14, 1872, when it was rendered, running of the limitation in this case would have been likewise suspended. And if the date of such partial payment had been less than fifteen years prior to the issual of the second execution there would be no bar to either it or the execution issued in 1894.

But more than fifteen years had elapsed, and consequently there was a complete statutory bar to any proceeding on the judgment of 1872, when the payment of $200 was made on the execution of 1892. Consequently no act of the defendants short of an express or clearly implied promise to satisfy the residue of the judgment, founded on moral obligation to do so, could have operated to revive it or entitle plaintiffs to an execution on it.

It appears that in 1876 an action in equity was instituted to subject certain propety of M. A. Moore to the satisfaction of the judgment of 1872, which.was pending until 1878. But that action was merely a Cumulative mode of securing satisfaction of the judgment, and did not have the effect to suspend plaintiffs’ right to successive executions, nor to stop tjie running of the limitation of the time within which they were required by statute to cause execution issued in order to prevent the bar to all proceedings on that judgment.

In onr opinion the issnal of the execution of 1892, and of course that of 1894, was illegal and ineffectual for every purpose, and the judgment quashing the latter and prohibiting further proceeding under it is affirmed.