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Keokuk, 34 Id. 253; Jones v. Van Patten, 3 Ind, 107: Benton v. Fay, 64 III.

Pursons v. Sullon, 66 N. Y. 92; True v. International Tel. Co., 60

417;

Me. 9; Dobbins v. Duqud, 65 Ill. 464, 467,

ADELBERT HAMILTON. Chicago.

Supreme Court of Kansas.

HUMMER ET AL. 0. LAMPHEAR. An action can he maintained on a domestic judgment, although it is in full force and effect, and the time within which an execution can issue bas pot expired.

Error from Jackson County.

Hudson f Tufts, for plaintiff in error.

Mart in f Orr, for defendants in error.

Horton, C. J.-The facts in this case are as follows: On June 17th 1876, the Perpetual Building and Saving Association recovered in the District Court of Atchison county a judgment against John P. and Matilda W. Hummer for the sum of $331.08, bearing interest at nine per cent. per annum. June 6th 1881, an execution was issued upon this judgment. This was returned wholly unsatisfied as to the building and saving association. On September 13th 1882, the judgment was assigned and transferred to A. II. Lamphear, who is now the owner thereof. On September 28th 1882, an alias execution was issued upon the judgment, directed to the sheriff of Jackson county, Kansas, and this execution was also returned unsatisfied. On November 24th 1883, A. H. Lamphear brought his action in the District Court of Jackson county against Jobo P. and Matilda W. Hummer, upon the judgment in favor of the building and saving association of June 17th 1876, and alleged in his petition that the judgment was in full force and effect : that John P. and Matilda W. Hummer had no personal property within the state of Kansas subject to execution, nor the legal title to any lands or real estate in said state subject to execution; that Matilda W. Hummer was the owner of an equitable interest in a quarter section of land lying in Jackson county, state of Kansas, the legal title to which was in the state of Kansas, to secure the sum of $676.30, with interest from June 17th 1882, at ten per cent. per annum; that upon payment of this amount and interest, the state was ready and willing to give a deed or patent

VOL. XXXIII.-6

conveying the land and the legal title thereto. The prayer of the petition was that judgment should be rendered against J. P. and M. W. Hummer for the sum of $331.08, with interest at nine per cent. per annum, and costs of suit; that the sheriff of Jackson county be appointed a receiver to ascertain the interest of Matilda W. Hummer in the land described in the petition; that he take possession of the same and hold it, with the rents and profits arising therefrom, subject to the order of the court, and for other and further relief as the court might deem meet and proper. The defendants, John P. and Matilda W. Hummer, demurred to the petition upon the grounds : 1st, that the court had no jurisdiction of the persons of the defendants or of the subject of the action; 2d, that the petition did not state facts sufficient to constitute a cause of action against the defendants or either of them. The court overruled the demurrer, and rendered judgment against the defendants for $546.17, with interest and costs, adjudged the saine to be a first and prior lien on whatever interest the defendants or either of them had in the real estate described in the petition, and decreed that if the defendants failed or refused to pay the judgment within a day named, an order of sale issue to sell the property to satisfy the same. To the rulings and judgment of the court the defendants excepted. It is their contention at this time that the petition does not state facts sufficient to constitute a cause of action, because, upon its face, it appears that the judgment sued on was, at the commencement of this suit, in full force and effect, and that execation might have issued thereon, and the equitable interest of Matilda W. Hummer in the real estate in Jackson county have been taken by execution : Code, sects. 419, 443; Comp. Laws 1879, c. 104, sect. 1, subd. 8. To support this, it is insisted that at common law an action could not be maintained upon a judgment until the time within which an execution might issue had elapsed: Pitzer v. Russel, 4 Or. 124; Lee v. Giles, 1 Bailey 449; 21 Am. Dec. 476; 3 Bl. Com. (Wendell's ed.) 160. Counsel

say

in their brief: “ There are dicta in several decisions which would seem to take a contrary view; but we have been unable to find a case where the question was squarely raised, and the decision was that such an action could be maintained at common law until the judgment became dormant, or the execution would prove ineffectual. * * * Burnes v. Simpson, 9 Kans. 658, decides that an action can be maintained on a domestic judgment in this state, which is true; but whether it can be maintained when an execution can issue thereon was not raised in that case, and consequently not examined. We claim that case does not decide the question now raised.”

The decision in Burns v. Simpson, supra, goes further than counsel are willing to concede. In that case the judgment was rendered June 4th 1859, for $3054 and costs. Executions were issued as follows < September 23th 1859 ; November 28th 1859 ; January 27th 1860; August 15th 1864; May 2d 1869. All of these were returned unsatisfied. The action on the judgment was commenced June 2d 1869. Under the law in force at the rendition of the judgment of June 4th 1859, judgments of the District Court were liens for five years on lands, and as long thereafter as judgment should be kept alive by the issue of executions in proper time: Comp. Laws 1862, sects. 433, 434. The judgment of Burns v. Simpson, of June 4th 1859, was in full force and unsatisfied when the action of June 2d 1869 was instituted, as it had been kept alive by the issue of executions in accordance with the provisions of the statute. Therefore the decision in Burns v. Simp8on, upon the record in that case, decides, in effect, that an action can be maintained upon a judgment in this state, although the judgment is in full force, and the time within which an execution can be issued has not expired. As counsel have been upable “to find a case where the question was squarely raised, and it was decided that such an action could be maintained at common law until the judgment became dormant, or the execution would prove ineffectual," we refer to the following authorities: “Debt lies upon a judgment within or after the year after the recovery:” Wh. Selw. 444. “By common law, an action could be maintained within a year and a day on a domestic judgment, that being the life of a judgment without issuance of execution :” 1 Com. Dig. 1792, Debt,A 2 (43d ed.), 3, 2, B.

In Ame: v. Hoy, 12 Cal. 11, it was insisted by counsel “ that, as an execution could have been issued on the judgment no action could be sustained thereon; or, in other words, that an action of debt will not lie on a judgment if an execution can be issued thereon." Upon this point, the court, BALDWIN, J., delivering the opinion, said: “The chief argument is that there is no necessity for a right of action on a judgment, inasmuch as execution can be issued to enforce the judgment already obtained; and no better or higher right or advantage is given to the subsequent judgment. But this is not true in fact, as in many cases it may be of advantage to obtain another judgment, in order to save or prolong the lien, and in this case the advantage of having record evidence of the judgment is sufficiently perceptible. The argument that the defendant may be vexed by repeated judgments on the same cause of action is answered by the suggestion that an effectual remedy to the party against this annoyance is the payment of the debt.”

In Greathouse v. Smith, 4 Ill. (3 Scam.) 541, TREAT, J., delivering the opinion of the court, said: “No rule of law is better settled than the one that an action of debt is maintainable on a judgment of a court of record. The judgment is a good cause of action, it being, as between the parties, the most conclusive evidence of indebtedness. We know of no principle which inhibits the creditor, on a judgment, which is in force and unsatisfied, from recovering in an action brought on it, although he may, at the time of bringing the suit, be entitled to an execution on his judgment. He is at liberty to proceed by execution to collect the judgment or institute a new action on it. Notwithstanding the second suit may be unnecessary, he has the clear legal right to recover, and the courts have no power to prevent him, or impose terms on him for so doing.”

In that case, Abraham Lincoln, afterwards president, appeared as one of the counsel.

In Davidson v. Nebaker, 21 Ind. 334, it was decided that “a judgment is a debt of record, and an action will lie to recover it, whether the judgment is foreign or domestic, notwithstanding the plaintiff may have a remedy on the judgment, in the court where it was rendered, by execution or otherwise."

In Hale v. Angel, 20 Johns. 312, it was held: “Where an execution, issued on a judgment in justice's court, is not returned at all by the constable, the common-law right of the party remains unimpaired, and he may bring an action of debt on the judgmeut." In the opinion. it was said: “ There are no negative words that a party shall not sue on a judgment until the execution has been returned. The common-law right of bringing an action of debt as 800n as a judgment is recovered, remains unimpaired. The statute does not give the action of debt, but is merely explanatory of the common-law right.”

In Smith v. Mumford, 9 Cow. 26, the case of Hale v. Angel, supra, was referred to and followed.

In Linton v. Hurley, 114 Mass. 76, it was held : “An action may be maintained upon a judgment, although an execution issued thereupon has not been returned;" and in O'Neal v. Kittredge, 85 Mass. (3 Allen) 470, it was decided “that a declaration setting forth the recovery by the plaintiff against the defendant, of a judgment for a certain sum as damages, and another certain sum as costs, which judgment remains in full force and unsatisfied, whereby an action hath accrued to the plaintiff to have and recover of the defendant the balance due thereon, and interest, is sufficient on demurrer."

Freeman, in his work on Judgments (3d ed.), sect. 432, says: " At common law a party has a right of action upon his judgment as soon as it is recovered. This right is neither barred nor sus pended by the issuing of an execation, nor because, from having the right to take out execution, the plaintiff's action seems to be unnecessary."

Many other cases might be cited supporting the same doctrine, but we think, for present purposes, the above sufficient. If the question were a new one in this state, the writer of this would prefer to follow Lee v. Giles, 1 Bailey 449, and Pitzer v. Russel, 4 Or. 124; but the case of Burns v. Simpson is decisive. That decision was rendered in 1872, and it is for the legislature to interpose and provide that such oppressive and vexatious actions shall not be brought if the rule of the common law, as interpreted in Burns v. Simpson, supra, is to be changed.

Finally, it is urged that the judgment rendered was improper : 1st, because the state had certain rights which the court was bound to consider; and 2d, because the language of the petition did not warrant the judgment. The petition alleged that the only claim the state had upon the property was to secure the payment of $676.80, with interest, and that there was no controversy between the state and Matilda W. Hummer as to the lien of the state. The judgment in no way affected the state, and any person desiring to bid at the sale of the real estate can readily ascertain the state's interest therein. The purchaser at the sale must buy subject to the lien of the state.

In regard to the other matter, it appears that an attachment had been issued, and, after the rendition of the judgment, an order for

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