105 Iowa 55 | Iowa | 1898
— I. A motion by appellee to dismiss the appeal is overruled.
II. Plaintiff is the assignee of a judgment rendered against the defendants, February 9, 1863. This suit was commenced November 20, 1895, on said judgment. It will be seen that more than thirty-two years expired after the rendition of the judgment and before the commencement of this suit. The controlling question in the case is as to the statute of limitations. Appellee insists, in different ways, that the question •is not properly before this court, but we think it is. In our consideration of the case, dates are important because of changes in the law as to the limitation of actions since the judgment was entered in 1863. Prior to the taking eff ect of the Code of 1873, actions on judgments in courts of record could be brought at any time after rendition, for a period of twenty years. The language of the Eevision in force from 1860 was: “The following actions may be brought within the times herein limited respectively after their causes accrue, •and not afterwards: * * * Those founded on a judgment of a court of record * * * within twenty years.” As a cause of action accrued on a judgment at its date; in 1863, the statute of limitations commenced
“Sec. 47. All public and general statutes passed prior to the present session of the general assembly, and all public and special acts, the subjects whereof are revised in this Code or which are repugnant to the provisions thereof, are hereby repealed, subject to the limitations and with the exceptions herein expressed.”
It is not to be seriously questioned that the Code of 1873 so far changed the prior law as that causes of action on such judgments did not accrue at the date thereof, but in fifteen years thereafter; and the effect of section 47, above quoted, was to repeal the prior law in so far as it gave a right of action on a judgment from and after its rendition, unless such a result is avoided by the limitations or exceptions expressed in the act.Section 56 of the same Code is1 as follows:
*58 “Sec. 50. This repeal of existing statutes shall not affect any act done, any right accruing or which has accrued or been established, nor any suit or proceeding had or commenced in any civil cause before the time when such repeal takes effect; but the proceedings in such cases shall be conformed to the provisions of this Code as far as consistent.”
As we have said, when the judgment was entered in 1863, the right was by law, given to the plaintiff to sue thereon at any time within twenty years. It was an accrued right. The general repealing clause of section 47 is, it seems to us, modified by section 50, so that it does not affect the right of action on judgments where the right of action accrued before the repealing act took effect. That the right to bring an action is a right “accruing or accrued,” within the meaning of the statute under consideration, see McDonald v. Jackson, 55 Iowa, 37. The reasoning of that case is also in line with our view. In that case it was claimed that the effect of the statute of limitations, as enacted in the Code of 1873, was to extend the time for bringing an action on the note to ten years after the act took effect, where a part of the statutory period had run, as in this case. Speaking to the question of a right being aff ected under the provisions of section 50, it is there said: “Now, if the Code of 1873 is to extend the period of the statute of limitations to ten years from the taking effect of the Code, it is apparent that the right accruing or accrued is affected. The right of the holder of the note is enlarged and the right of the maker of the note is abridged. .Under section 50 of the Code, this cannot be done.” The reasoning is applicable to this case. If the repealing clause of the Code of 1873 is' to' change the law as to the right of the judgment creditor to bring suit, by arresting the operation of the law under which the judgment was taken, the effect is to enlarge or
Counsel in argument have considered the effect of Weiser v. McDowell, 93 Iowa, 772, in which we held that, because of the provision of the Code of 1873 giving a. right of action on judgments only after the expiration of fifteen years from' the date thereof, the statutory period did not commence to run till the cause of action accrued. Appellee urges that the case is authority for his contention here, but we think not. It is true that in that case the jugment was entered before the Code of 1873 was adopted, but the question on which this case turns was not presented or considered in that case. The judgment sued on in that case was entered in November, 1871, and the defendant, who pleaded the statute of limitations, stated in his answer that “no action could have been brought on said judgment at any time prior to the 8th of November, 1886”; and the case was submitted and considered as one in which no right had accrued before the Code of 1873 took effect, but as a-