Miller Co. v. Melone

Opinion of the court by Irwin, J.: The only question involved in this appeal, and the one upon which the case turned in the district court, and upon which this appeal depends is, did the judgment against Melone Brothers, on which the last execution *249 was issued, as shown by the record, in 1892, become dormant during the pendency of the present action? And if ■so, does this defeat this suit ? Plaintiffs in error allege that this is not a statutory •supplemental proceeding, but is an independent creditor’s suit. It seems to us that an inspection of the pleadings will clearly demonstrate that this action is what is known in law as a creditor’s bill. Mr. Black, in his Law Dictionary, ■on page 800, defines a creditor’s bill as follows: “A creditor’s bill strictly, is a bill by which a creditor seeks to satisfy his debt out of some equitable estate, of the defendant, which is not liable to levy and sale under an ■execution at law.” Now, the proceedings in the ease at bar had for their primary object - the collection of a judgment against the defendants, Melone Brothers, and in favor of the plaintiff. They sought by this bill to subject the proceeds of a certain sale of goods to E. T. Patton & Company, to the payment of this judgment. This action was based entirely upon this judgment, and had no other purpose or object than the collection of this judgment, by reaching whatever was in the hands of E. T. Patton & Company, as the proceeds of the said sale, or whatever should properly be in their hands, as the result of the sale of these goods, and applying it to the payment of this judgment debt. Whatever was in the hands or should be in the hands of E. T. Patton & Company, as the result of the sale of said goods, was a chose in action, which, according to the statements of the petition, in equity and justice belonged to Melone Brothers. It was of. that nature that it could not be reached *250 by the ordinary process of execution, hence the plaintiffs resort to this extraordinary method to subject these proceeds to the payment of this judgment. Therefore we think it clearly comes within the definition of a creditor’s bill’. This being true, let us next consider what are necessary conditions precedent to such an action. The United States supreme court in the case of Tube Works Co. v. Ballon, 146 U. S. 523, says: “Where it is sought by equitable process to reach equitable interests the bill, unless otherwise provided by statute, must set forth a judgment in the jurisdiction where the suit in equity is brought, the issuing of an execution thereon, and return unsatisfied, or must make allegations showing that it is impossible to obtain such a judgment in any court within such jurisdiction.” Now it logically follows that if there must be a judgment and an execution issued and returned unsatisfied, when it appears from the record that a judgment had become dormant, or what is known in common parlance as outlawed, so that an execution cannot be legally issued thereon, then the action must fail. As the proceedings at bar are simply in aid of the action by an execution, or in other words, are ancillary to an execution, and if no execution could be legally based upon this dormant judgment, it seems to us that no> proceedings in aid or ancillary to an execution could be based upon such an execution. The language of our statute is that if five years have intervened between the date of the last execution issued on the judgment, and the time of suing out another execution thereon, such judgment shall become dormant, and shall cease to *251 operate as a lien upon the estate of the judgment debtor, (Paragraph 4337, Statutes of 1893.) In the case of Ross v. Duval, 13 Pet. 44, the United States supreme court hold: “That to avoid the operation of a statute of limitation, a party must show himself to be within the exception; that a statute operating to bar actions on judgments, bars executions on those judgments also.” And in the case of McAleer v. Clay Co., 42 Fed. Rep, 667, Judge Shiras, speaking for the court, made this observation : “The answer shows that before the amended information was filed the judgment became inoperative, and non-enforcible by reason of the lapse of time, creating a statutory bar to its enforcement.” And in the case of Ross v. Duval, above cited, the court further says: “It cannot be supposed that the legislature would bar an action on a judgment, and still authorize an execution to be issued on it. If the right to. an execution is barred, the right to a writ of mandamus to serve the purpose of an execution must be likewise barred.” And in the same case the court uses the following language : “It is enough to know that the act of 1792 (Va.) imposes a limitation to actions and executions on judgments, by which, like all other limitation laws of the states a judg- *252 meat becomes inoperative. An action of debt will not lio upon it, nor can it be revived by scire facias, much less can an execution be issued upon it. Its vitality is gone beyond the reach of legal renovation.” We are aware that in time past the courts' have looked with disfavor upon statutes of limitation, but we think the tendency of more modern authorities is to regard them more favorably, and they are now regarded as valid and meritorious defenses. We think the tendencies of modern courts is to put the defense of the statute of limitations upon the same plane with any other legal defense. In fact ‘Judge Brewer, speaking for the court, in the case of Glenn v. Dorsheimer, 23 Fed. Rep. 699, says: “Where the law furnishes to a party a simple method, of proceeding against an ultimate debtor, and he fails to pursue that, we think such debtor can appeal to the statute of limitation as a protection.” The supreme court of North Dakota, in the case of Farmers National Bank v. Braithwaite, 75 N. W. 244, reviews the authorities upon this question and" holds: “A judgment ceases to be valid after the expiration of ten years from the recovery thereof, unless suit is brought thereon, within ten years, and even in that case the judgment is dead for all purposes except supporting such action.” That where supplemental proceedings are instituted while the judgment is alive, they will fall to the ground upon expiration of the statute of limitations, and that the defendant may move to and have them set aside on the *253 ground that the judgment has ceased to be valid. Such proceedings are not an action on the judgment, but are in the nature of a creditor’s suit, to enforce the collection thereof; hence their pendency is no more effectual to keep alive the judgment, than such a suit or an execution would be. Chief Justice Corliss in speaking for the court, said: “When once it is ascertained that for any reason there is no longer any judgment, the proceeding to enforce it must fall to the ground. It is immaterial whether the judgment has been paid, or has ceased to possess life owing to the lapse of time. In either case there is no longer any judgment left to support the steps taken to enforce it. A strange condition of the law it would be if, after the lien of the judgment on real estate had been lost, and after the plaintiff was powerless to enforce it by execution, and despite the fact that he could no longer give it new life, by a suit upon it resulting in the recovery of a new judgment, ht could nevertheless through a receiver in supplementary proceedings, reach and sell the debtor’s land and subject all of his assets, legal and equitable, to the payment of the same outlawed judgment.” In the case of McAfee v. Reynolds, (Indiana) reported in the 18th L. R. A. 211, it is said: “The decision that a valid cause of action may be lost by mere lapse of time pending a suit to enforce it," is a striking exception to the general rule.” ' And in the opinion in this case Mr. Justice Elliott makes this observation-: “The difficulty is created by the fact, for the fact it is, that at the time the decree was pronounced, the judgment of the plaintiff had ceased to have any force as a lien. The *254 proposition of appellant that the lien of the judgment as fixed by the statute, cannot be prolonged by the courts, is indisputably correct.” And in that case he cites: Wells v. Bower 126, Ind. 115; Shanklin v. Simms, 110 Ind. 143; Brown v. Narkoff, 118 Ind. 569; Applegate v. Edwards, 45 Ind. 329; Albee v. Curtis, 77 Iowa, 644; Hutcheson v. Grubbs, 80 Va. 251; Boyle v. Maroney, 73 Iowa 70; Spencer v. Haug, 55 Minn. 231; Newell v. Dart, 28 Minn. 248. And the United States supreme court, in deciding wherein and under what circumstances a creditor has a vested right in concealed property, in the 92 Fed Rep. 269. uses the following language: “Whenever a creditor has a vested right in or lien upon property, the enforcement of which ig hindered or rendered inadequate by a fraudulent conveyance or incumbrance, he may maintain a suit in equity to remove it, without exhausting his other legal remedies.” We think that the invariable rulings, at least so far as we have been able to find them, of the various courts have been,' that as a necessary, absolute condition precedent, there must be an actual subsisting judgment, to support a creditor’s bill, at the time of rendering the decree therein. The Minnesota supreme court, in a case which in principle is identical with the ease at bar, has laid down what we think to be the true rule in such cases. In the case of Newell v. Adolphus Dart et al., reported in the 9 N. W. page 732, which was an action in the nature of a creditor’s bill, brought by plaintiff as judgment creditor of defendant, Adolphus Dart, to reach a judgment held by the judgment *255 debtor, against defendants, Lewis and Shanbnt, and to have it applied in satisfaction of his own judgment, the judgment held by plaintiff against Adolphus Dart was rendered and docketed January 23, 1870. Execution had been issued on it July 15, 1870, and returned unsatisfied September 15, 1870. An alias execution had been issued on it September 20, 1878, and levied the same day upon the judgment now sought to be reached to satisfy this execution. The principal relief sought by plaintiff is that this judgment held by his judgment debtor, Adolphus Dart, against' Lewis and Shaubut, be appropriated to the payment of his own judgment against said Dart, and he for that purpose ordered sold, under the alias execution issued thereon, as aforesaid, and still in the hands of the sheriff. This action was commenced September 21, 1878, the trial of the action was closed, and the cause submitted to the court for its decision, July 11, 1880, and its decision filed August 11, 1880. The case was afterwards twice reopened, once on application of defendants, and once on application of plaintiff, and fmallv submitted and additional findings filed, September 17, 1880 and final judgment entered thereon October 8, 1880. Judge Mitchell, speaking for the court says: “The plaintiff’s right to the relief sought depends en- , tirely upon the existence of his judgment. This action is wholly ancillary to the judgment, and in aid of the execution issued thereon, for the purpose of reaching a certain chose in action of the judgment debtor, and having it applied in satisfaction of the plaintiff’s judgment. Hence, if plaintiff’s judgment be dead, his whole case falls to the ground. It is provided by statute that a judgment shall survive and the lien thereof continue, for the period of ten years and no longer. (Gen. Stat. 1878, chap. 66, sec. 77.) *256 In the present case this period expired June 23, T880, and during the pendency of this action, hence before the final trial and decision of this case, and before judgment rendered therein, plaintiff’s judgment had ceased to exist, either as a cause of action or as a lien, unless kept alive by the commencement and pendency of this action beyond the statutory period of ten years. We do not think the pendency of this action had any such effect. It is not in any proper sense, as before remarked, an action brought upon the judgment as a cause of action, in order to obtain a new judgment, but simply an action ancillary to, and for the purpose of obtaining satisfaction of an existing judgment. It has been repeatedly held that a pending levy of an execution, made during the life of a judgment, will not operate to continue the life or lien of a judgment beyond the statutory period; that a judgment creditor must sell the property levied upon within the statutory period of the life of the lien of the judgment, that a levy during that period neither creates a new lien, nor extends the judgment lien, that nothing but a renewal during the life of the judgment, will continue the lien of the judgment, that if an execution is issued at so late a day that a sale cannot be made within the life of the judgment, it should be accompanied by a scire facias or renewal.” And he there cites as authority for this proposition: Tenney v. Hemenway, 53 Ill. 97; Gridley v. Watson, 53 Ill. 186; Isaac v. Swift, 10 Cal. 71; Bagley v. Ward, 37 Cal. 121; Rogers v. Druffel, 46 Cal. 654; Davis v. Ehiman, 20 Pa. Stat. 256; Tuffts v. Tuffts, 18 Wend. 621; Little v. Harvey, 9 Wend. 157; Roe v. Swart, 5 Cow. 294. An the court further says in this case: “It is true that these are all cases where 'the judgment creditor was proceeding entirely under his execution at *257 law, against property which could be taken and sold upon it. But we think they are in principle entirely analagous to the case at bar. We fail to see any distinction in principle between a case where, for the purpose of enforcing his judgment, a party resorts to execution to reach property liable to such process, and a ease where, for the same purpose, he proceeds by creditor’s bill or supplmentary proceedings to reach assets not subject to execution. In both cases the object is the same, to reach property of the debtor in order to satisfy an existing judgment, and there is no reason why a creditor’s bill, or supplementary proceeding, (which are a satisfactory substitute for .the former), should continue the life of a judgment beyond the statutory period in the one ease, than that a levy under an execution should do so in the other. We are, therefore, of opinion that plaintiff’s judgment became barred and ceased to exist, either as a cause of action or as a lien, during the pend-ency of this action. It is suggested by counsel that any judgment against Adolphus Dart might be rendered in this action. We think such relief would be entirely foreign to the nature and manifest purpose of the action.” Now it seems to us that changing the names of the parties, and changing the ten year limitation of the Minnesota statute, for the five year limitation of the Oklahoma statute, the case at bar and the cases cited last, are identical in principle, and the same reasoning that applies to the Minnesota case will apply to the case at bar. The language of our statute is that judgments shall be barred in five years from the date of the last execution, and that of the Minnesota statute, that they shall be barred in 'ten years. In the case at bar it is insisted by counsel for plaintiffs in error that E. T. Patton & Company should be made to account to plaintiffs in error as fraudulent trustees. Now if they can be compelled to account to the plaintiffs in error, *258 it is by virtue of the fact that the plaintiffs in error are bona fide judgment creditors, and that that relation of judgment creditor is an existing relation at the time that this decree is sought. This action is brought upon, and is entirely ancillary to the judgment rendered in favor of the plaintiffs in error and against Melone Brothers. Now unless the judgment is a subsisting cause of action at the time of this decree in favor of the plaintiff in error is sought, then it is not a sufficient foundation upon which this proceeding can be based. We take it that the statute of limitations, or, as it is sometimes called, the statute of repose, in effect entirely wipes out the legal force and effect of a judgment, and that a judgment once rendered dormant, iby the operation of the statute of repose, can only be re~ wived in the way pointed out by law. In the ease at bar, mot only five but seven years had elapsed since an execution wras issued upon the judgment against Melone Brothers, and iin contemplation of law, such judgment was legally dead, ;and beyond the power of this or any other court, to breath into it legal vitaltiy, as the time provided by statute in which it might be revived, had long since elapsed. But counsel for plaintiff in error claimed that although this judgment had become dormant, by the lapse of time, that it was revived by the written consent of Drury L. Melone, ;and that said written consent revived the judgment with ¡all its original force. We do not think this can take the place of the statutory method of reviving a judgment. This /judgment was against not only Drury L. Melone, but his brother and partner. The judgment was against Melone *259 Brothers, and. we think whether by scire facias, or any other method of reviving a judgment, the proceedings must be against all. We do not think that Drury L. Melone. one of the partners, had authority, long after the partnership had ceased, to revive a judgment against Melone Brothers. We think it may be laid down as a general rule, and a rule supported by the great weight of authority, that „ all parties to the original judgment, if living and not discharged, must be made parties to the proceedings, to renew or revive that judgment. In the case of Funderburk v. Smith, 74 Ga. 515, it was held that if one was not made a party and served with notice to revive, it was' error to revive the judgment as to the other parties. The whole judgment must be revived and not a part of it. Under the Statute of Oklahoma of 1893, paragraphs 3517-18, the authority of a partner is defined. One partner cannot even confess judgment for the firm, much less revive a judgment, unless his copartner has wholly abandoned the business, or is incapable of acting in the premises, and if these facts existed in the ease at bar, there should have been some showing made of that fact. It seems to us that any action taken by one partner, long after the firm has ceased to do business, in attempting to revive actions barred by the statute of limitations, against the firm, must be void. In support of the doctrine that all parties to the original judgment should be served in proceedings to renew or revive the judgment, we cite: Rowling v. Fowler 14 Ark. 27; Greer v. State Bank, 10 Ark. 456; Finn v. Crabtree, 12 Ark. 597; Bowie v. Neal, 41 Md. 124; Davidson v. Alvord, 3 Ind. 1. It seems to us on a careful review of this cause, that *260 the judgments against Melone Brothers, as shown by this record, are legally dead, and there is no vitality left in them. That the attempted revival on the part of Drury L. Melone, is wholly void, is a nullity; and in fact a valid and existing judgment is necessary before a decree in a case of this kind can be had, and without such judgment in active force, an action of this kind must fail. This being true, we think that the action of the district court in sustaining the demurrer to the evidence, which clearly shows that the judgment against Melone Brothers, in favor of plaintiff in error, was dormant, was correct, and entirely in accord with the weight of authority. This being the only point in controversy, and being the only error urged for a reversal of this judgment, we think the judgment of the district court should be affirmed, which is accordingly done. Burford, C .J., having presided in the court below, not sitting; all the other Justices concurring.