Swift & Co. v. Weston

*44 MR. JUSTICE GALEN delivered the opinion of the court. This action was instituted by the plaintiff to recover from the defendant the sum of $711.25, together with interest thereon at the rate of seven per cent from the fifth day of July, 1921, and costs of suit upon a judgment rendered by the county court of Box Butte county, Nebraska, in favor of plaintiff and against the defendant, entered on the fifth day of July, 1921. The defendant’s answer denies the entry of the judgment for want of jurisdiction, and disclaims knowledge of the entry of the judgment and alleges among other things by way of further affirmative defense, that if any judgment is recorded against her in the Nebraska court it has been dormant and unenforceable by final process ever since the sixth day of July, 1926, by reason of the provisions of section 1480 of Cob-bey’s Annotated Statutes of Nebraska, then and now in force and effect, providing that if an execution be not sued out upon the judgment within five years from its date or where five years intervene between the date of the last execution and the time of issuing another, the judgment shall be con *45 sidered dormant. In this connection it is alleged that no execution was ever issued on the judgment, and it is therefore now dormant and unenforceable under the Nebraska statutes which are pleaded, and that the judgment has never been revived in the manner provided by the laws of Nebraska. The plaintiff’s reply put in issue the statutes of Nebraska. The cause being at issue was regularly brought on for trial, on March 13, 1929, before a jury, some of the issues being established in plaintiff’s favor through stipulation. At the conclusion of the trial, the jury were by the court duly instructed, and returned a verdict in favor of plaintiff for the sum of $1,192.56, covering the amount of the Nebraska judgment, interest and costs of suit. Judgment was entered upon the verdict from which the defendant has appealed. The only question presented in disposition of this appeal is whether or not a dormant judgment of the sister state of Nebraska may be made the basis of this action in Montana. We approach decision of the question presented bearing in mind the fundamental rules that full faith and credit shall be given to the judicial proceedings of a sister state (sec. 1, Art. IV, Const. U. S.), and that the vadidity of a judgment must be determined by the laws of the state where rendered. (Adams v. Stenehjem, 50 Mont. 232, 146 Pac. 469.) It must be given the same effect in this state as it has under the laws of the state where rendered. (Mahoney v. State Ins. Co., 133 Iowa, 570, 9 L. R. A. (n. s.) 490, 110 N. W. 1041.) The statute of Nebraska pleaded provides: “If execution shall not be sued out within five years from the date of any judgment that now is or may hereafter be rendered in any court of record in this state, or if five years shall have intervened between the date of the last execution issued on such judgment and the time of suing out another writ of execution thereon, such judgment shall become dormant, and shall cease to operate as a lien on the estate of the judgment debtor.’’ (Sec. 1480, Cobbey’s Ann. Stats. Neb. 1903.) And: “If a judgment become dormant, it may be revived in the *46 same manned as is prescribed for reviving actions before judgment.” (Sec. 1463, Id.) At the trial it was stipulated between the parties “that no execution was ever issued on the judgment sued upon in this action; and further that no action or proceeding of any nature whatsoever has ever been instituted in the courts of Nebraska for the revival of said judgment or upon said judgment.” The record does not show when this action was instituted; however it appears that the plaintiff’s amended complaint was filed on August 7, 1928, a little more than seven years after the rendition of the Nebraska judgment sued upon. Our Montana statute (sec. 9028, Rev. Codes 1921) gives a right of action on a judgment within ten years; whereas, the lien of a judgment is expressly limited to six years. (Id., 9410; Marlowe v. Missoula Gas Co., 68 Mont. 372, 219 Pac. 1111.) However, it is manifest that if the action is barred in Nebraska, it cannot be given greater efficacy here than would be accorded it there. It is fundamental that a foreign judgment cannot be given greater force or effect than is accorded it in the state where rendered. (34 C. J. 1106; Adams v. Stenehjem, supra.) In construing and applying the statutes pleaded the supreme court of Nebraska has held that section 1480, above, is a statute of limitations and that an action on a judgment is barred in Nebraska after the lapse of five years. (Armstrong v. Patterson, 97 Neb. 871, 152 N. W. 311; Holmes v. Webster, 98 Neb. 105, 152 N. W. 312, 313.) In the cases above cited we find that the supreme court of Nebraska has expressly overruled its former decision, previously followed, in the case of Snell v. Rue, 72 Neb. 571, 117 Am. St. Rep. 813, 101 N. W. 10. In the construction and application of the statutes of Nebraska, the last conclusions reached by the supreme court of that state are controlling upon this court, even though we were to entertain different views respecting the proper construction to be placed upon the language employed. Since the action could not be successfully maintained in the Nebraska courts upon a plea of bar by limitation, the same *47 defense here pleaded precludes a recovery. Accordingly, the judgment rendered was erroneous. The petition for a rehearing having served its useful purpose, a rehearing is denied. The former opinion is withdrawn and this one substituted. The judgment is reversed and the cause remanded to the district court of Fergus county, with direction to enter judgment dismissing the plaintiff’s complaint. Remittitur will issue forthwith. Mb. Chief Justice Callaway and Associate Justices Matthews and Ford concur.