Cotton v. First National Bank

Norval, J. The First National Bank of Superior, on the 23d day of August, 1895, instituted an action in the court below to foreclose a real estate mortgage executed on June 25, 1889, by F. P. Bonnell and Alice L. Bonnell, his wife, covering certain real estate situate in Superior. George F. Cotton, administrator of the estate of T. P. Coin, deceased, and others were made parties defendant. The administrator filed an answer and cross-petition setting up the recovery of a judgment on June 5,1888, by Daniel W. Barker and said T. P. Coin, in the county court of Nuckolls county, against said F. P. Bonnell, for the sum of $980 and costs taxed at $9, the filing of a transcript of said judgment on the following day in the district court of said county, and praying that said judgment be declared the first lien against the mortgaged premises. This is a proceeding to review the judgment of the court below sustaining a general demurrer to the answer and cross-petition. A single question is presented by the record, and that is, whether the judgment obtained by Barker and Coin against F. P. Bonnell is a lien upon the real estate described in the mortgage. It is disclosed by the averments of the cross-petition that this judgment was rendered on June 5, 1888, or more than five years prior to the commencement of this action to foreclose the mortgage, and the pleading contains no allegation that an execution has ever been issued upon such judgment, from which counsel for the bank argue that the judgment had become dormant, and, therefore, was not a lien upon the lands of the judgment debtor within the county. In the light of section 182 of the Code of Civil Procedure, we are convinced that this argument is unanswerable. It declares that “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 [753] 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.” In considering this provision in Flagg v. Flagg, 39 Neb., 229, it was said: “It is obvious that in case a judgment creditor fails for more than five years after the date of his judgment to sue out an execution, the judgment becomes dormant and ceases to be a lien upon the real estate of the defendant. We see no escaping the conclusion that where a judgment becomes dormant, its lien is thereby lost as against a mortgage made by the debtor during the life of the judgment.” It is conceded by counsel for the administrator, if there was nothing intervening to suspend the running of the statute of limitations, the judgment in question was dormant, and the demurrer to the cross-petition was properly sustained; but it is strenuously urged that the pleading assailed discloses that the enforcement of the judgment was enjoined from the last of the year 1890 to the spring of 1893, at the suit of Bonnell, which prevented the judgment from becoming dormant. If the premises were true, then, under the provisions of section 509 of the Code of Civil Procedure, the conclusion drawn by counsel would be irresistible. But the cross-petition does not aver that the collection of this judgment was ever prevented by injunction. It merely alleges “that during 1890 the defendant, Franklin P. Bonnell, to prevent this cross-petitioner from collecting said judgment, commenced injunction proceedings in the district court of Nuckolls county to obtain an order to perpetually enjoin the collection of said judgment.” The pleading further charges that said Bonnell, in 1893, dismissed his said suit. It is not disclosed that a temporary injunction or restraining order was ever allowed in said action to stay the enforcement of the judgment, or that an injunction bond was ever given. For aught that appears in this record, the judgment creditors could have sued out [754] an execution on said judgment had they so desired. The suit was to perpetually enjoin the judgment; no restraining order was ever asked in the cause, so far as the record shows. No execution having been issued on the judgment, and the failure to take out one not having been occasioned by the granting of an injunction or by any other act of the debtor, the judgment was dormant when the foreclosure case was commenced and the decree therein was rendered. The cross-petition did not state a cause of action for another reason. It did not aver that the mortgaged premises were, or ever had been, owned by Mr. Bonnell, the party against whom the transeripted judgment was entered. If the premises belonged to the wife, the judgment sought to be enforced was not a lien thereon. There was no error committed in sustaining the demurrer, and the judgment is Affirmed.