First Nat. Bank v. Van Vooris

Kellam, J. This is an appeal from an order of the circuit court of Brookings county discharging an attachment. The leading question in the case is whether, within the meaning of our attachment law, a judgment of a sister state is a contract, without regard to the character of the original cause of action which entered into it. The difficulty is not to find direct adjudications upon the general question of whether a judgment is or ought to be classed as a contract, for they are almost numberless on both sides of the question. The embarrassment is to determine which line of these cases, so squarely opposed to each other, is most securely grounded upon good reason, and most likely to result in its practical application in the most good and the least harm. Although some elementary law writers, and some courts whose learning is so great and whose judgment is so nearly infallible as to almost foreclose further inquiry, have declared judgments to be contracts, and have so classed them, it is very obvious that ordinarily they lack the element of consent, which is generally named as the very life and spirit of a contract. It would look pedantic, and probably serve no useful purpose, to undertake in this opinion to rewrite the learning found in the opinions of other courts, and in the books of the text writers, upon this question of the contract character of a judgment. A very brief examination of the subject demonstrates the fact that the most learned, careful and' thoughtful judges and lawyers have reached directly opposite conclusions. In Black on Judgments (volume 1 sec. 7 et seq.) are marshaled a large number of these conflicting decisions. In 550 Louisiana v. Mayor, etc., of New Orleans, 109 U. S. 285, 3 Sup. Ct. 211, the judges of the federal supreme court could not agree that a judgment was or was not a contract. It seems to me, however, that, even if a judgment is not a contract in a broad and'unqualified sense, it does not necessarily follow that a foreign judgment cannot be the basis of an attachment. This must depend upon the interpretation to be given to the expression, “action arising on contract,” as used in the attachment law.' The original office of the attachment was to secure the collection of debts. The relation of debtor aDd creditor must exist. It could not be used in actions for wrongs or torts. In some of the states this scope of the proceeding has been enlarged so as to include in some states specified, and in others all, actions in tort. Actions at law are fundamentally and logically divided into two classes, — “actions ex contractu” and “actions ex-delicto,” — though these express terms are not employed in the statute. Everybody knows what these terms mean, and, while the legislature seemed to prefer English words, we are inclined to think that they used this expression, “actions arising on contract,” as the equivalent of “actions ex-contractu,” just as they substituted “claim and delivery” for ‘‘replevin.” Now, while it may seem essentially contradictory to say that an action brought on something which is not a contract is an action' ex contractu, or an ‘‘action arising on contract,” still what we seek is to know what kind of an action the legislature meant when they referred in their attachment law to an “action arising on contract.” It seems, to us that the thought and purpose of this first paragraph of the attachment law was to declare in what general class of actions an attachment would lie. It was a declaration of the purpose and policy of the attachment law of this state as to what general class or kind of actions might be aided by attachment. By the statutes of some of the states, attachments were allowed in any action for the recovery of money. Sometimes both classes were expressly named, as in Georgia, 551 where it was available ‘ ‘in all cases of money demands, whether arising ex contractu or ex delicto.” In others the remedy was confined to actions “on contract, express or implied”; “actions on contract”; “actions arising on contracts,” etc., — all meaning, as we think, that general class of actions known in legal nonenclature as “actions ex contractu.” Subsequent provisions are supplementary, and define particularly the further conditions that must exist to justify the issue of the attachment. The general condition announced in the beginning is that the action must be of that class known as ‘ ‘actions on contracts” as distinguished from “actions for torts.” Actions on judgments form a very common class of actions, and have always been brought as ex contractu actions, and not as tort or ex delicto actions. O’Brien v. Young, 95 N. Y. 431; Louisiana v. Mayor, etc., of New Orleans, supra; Johnson v. Butler, 2 Iowa, 535. This is not because judgments are essentially and absolutely contracts, but because the obligation imposed by them is more in the nature of a contract liability than a tort liability. It seems much the same in character as the liability of an infant to pay for necessaries. The judgment against him does not rest upon his contract liability, for he is not required to pay what he promised or agreed to pay, but simply what it is right for him to pay, and yet his liability is regarded and classed as contractual. We are inclined to regard a judgment, not as a contract, but as a quasi contract, which the legislature and the courts have treated as a contract in respect to the remedy by subsequent action upon it; and so, as before suggested, the question whether, under our statute, an attachment may issue in an action on a judgment depends upon the sense in which the legislature used the expression, “action arising on contract.” If used in an exact and literal sense, an action on a judgment would not in, our opinion, be included; but if used in a general and leading sense, to distinguish actions of one class from those of the other, then the expression must be presumed to have 552 been used in view of the common understanding and practice that actions on judgments were actions on contract. I think the same meaning was intended here, as by the same words in section 4915, providing that a cause of action “arising on contract” may be pleaded as a counterclaim. I think there could be little doubt that an existing judgment might under this provision be pleaded as a counterclaim. This point was directly ruled in Taylor v. Root, 43 N. Y. 335, where it was held that in an action on contract, a judgment in an action of slander could be set up as a counterclaim for the reason that, within the meaning of that provision, it was á cause of action arising on contract. In Wyman v. Mitchell, 1 Cow. 316, and McCoun v. Railroad Co., 50 N. Y. 176, and O’Brian v. Young, 95 N. Y. 428, all New York cases, it was distinctly said that a judgment was not a contract; and yet in Nazro v. Oil Co., 36 Hun. 296, and again in Gutta-Percha & Rubber Manuf’g Co. v. Mayor, etc., 108 N. Y. 276, 15 N. E. 402, reversing 46 Hun. 237, it was held that an action on a judgment was one on ‘‘a contract express or implied,” within the meaning of the attachment law, and the right to attachment was in each case sustained. In the latter case the court said: “In a suit upon a binding judgment, whether foreign or domestic, the plaintiff must therefore be entitled to the same provisional remedies to which he would be entitled in an action upon a contract express or implied.” Upon the same line the supreme court of North Carolina said that, while judgments were not treated as contracts for all purposes, they were so treated for the purpose of distinguishing them from causes of action ex delicto, and that they were not included in a statute covering causes of action “not arising out of contract.” See Moore v. Nowell, 94 N. C. 265. In Johnson v. Butler, 2 Iowa 353, an attachment was issued on an action on a judgment. Their attachment law prescribes a different procedure, in an action “founded on contract” from that in an action ‘‘not founded on contract. ” The question was as to which class the action 553 belonged. The court said: “The distinction is manifestly between actions ex contractu and ex delicto, and it was always so understood and so acted upon. * * * The Code does not recognize the common-law technical names of action, nor, in this case, even the general classification of those upon contract and those of tort, in express and technical terms; still the sense cannot be mistaken. ” The Wisconsin supreme court in Childs v. Manufacturing Co. (Wis.) 32 N. W. 43, discussed the question whether an action on a judgment, as one arising on “contract expressed or implied,” could be joined with an action for the breach of an express contract, and said: ‘‘When we consider the object of section 2647, we think it very clear that the legislature intended to use the word ‘contract’ in said subdivision in its largest sense, and not in a restricted sense. The object of the section, as a whole, is to classify causes of action with reference to their joinder in one and the same action. * * In this view of the subject, notwithstanding the fact that in other parts of the statute, and for other purposes, the legislature seems to have made a distinction between ‘contracts’ and ‘judgments,’ that fact furnishes no good reason for holding that in said section 2647 the word contract was not intended to be used in its larger meaning, so as to cover a case of a judgment for the payment of money. ’ Against this enlarged interpretation of the expression “actions arising on contract,” so as to include an action on a judgment, it is urged that the legislature of at least one of the states, Nebraska, did not so use or understand it, for they thought it necessary to expressly add ‘‘judgment or decree” to “debt or demand arising upon contract.” There is certainly some force in this, but the argument is of the same character as it would be to urge that under our law an attachment would lie in an action for a breach of promise to marry, because in New York it was thought necessary to except such actions from those on “contract, expressed or implied”; and our legislature has not made such exception, thus indicating, as the argument would be, that they intended to allow at 554 tachments in such cases. We do not think the fact in either case 'or the inference therefrom, is potent enough to control our conclusion as to the proper interpretation of our law. While the question is not entirely free from embarrassment, we conclude that an action on a judgment is an “action arising on contract,” within the meaning of that expression as used in our attachment law, and that this is so whether the original cause of action which entered into the judgment was one on contract or tort. This view necessitates the conclusion that the court erred in discharging the attachment on the ground that the action was not one arising on contract, and the order appealed from is reversed. All the judges concur.