Neilands v. Wright

Carpenter, J. This suit was commenced February 12, 1901, on a judgment rendered in justice court on the 25th of January, 1894. The defense was that the claim was barred by the statute of limitations. Defendant had made several payments, — the first • September 26, 1894, and the last December 10, 1900, — aggregating $169.75, to apply on said judgment. On the trial, defendant’s coun [78] sel stated that the only question he raised was that payment on a judgment does not take it out of the statute of limitations. The trial was adjourned to the following day. He then stated: “When payments were made on this judgment, they were made under duress. Mr. Wright, at the time or soon after the judgment was rendered, went onto the police force; and under their requirement at that time, and under the police law now, policemen had to pay their debts. The police commission did not go behind the judgment, whether it was right or wrong. Mr. Wright was not able, at the time judgment was rendered, to take an appeal,- — in fact, did not know that there had been a judgment, because, by an agreement between him and the plaintiff, the case was to be di'opped. Yet a judgment was rendered against him in such a sum that he was not able to give a bond. The payments that were made upon this judgment were made under duress.” The court replied, “I do not think all you state amounts to duress,” and thereupon charged the jury to render a verdict for the plaintiff for the balance of the judgment. The objection now urged, and upon which defendant seeks a reversal of the judgment, is that “he was not allowed to go into the merits of his case, in order that he might show that the payments made by him were not a recognition of the indebtedness, nor a promise to pay the balance of the judgment.” Defendant’s counsel rely upon Jewett v. Petit, 4 Mich. 508; Parsons v. Clark, 59 Mich. 417 (26 N. W. 656); and Lester v. Thompson, 91 Mich. 254 (51 N. W. 893). In each of these cases it was held that a payment made upon a claim under such circumstances as to repel the presumption that the debtor thereby recognized his obligation to pay the entire debt did not prevent the running of the statúte of limitations. These decisions, in our judgment, have no application to the case made by the record. Defendant’s claim that the judgment was obtained in the manner stated by his counsel in no way indicated that the payments on said judgment were made under such circumstances as to repel the presumption that defendant thereby recognized his obligation [79] to pay it. The trial judge .was bound to presume, and this court must presume, that these payments were unaccompanied by any fact or circumstance which would tend to qualify their presumed effect. That such a payment interrupts the operation of the statute of limitations is indicated by the cases relied upon by defendant’s counsel. The rule of law applicable to this case is clearly stated by Judge Cooley in Miner v. Lorman, 56 Mich. 216 (22 N. W. 266), in the following language: “The statute does not prescribe what effect part payment of a demand shall have, but it is familiar law that it operates as an acknowledgment of the continued existence of the demand, and as a waiver of any right to take advantage, by plea of the statute of limitations, of any such lapse of time as may have occurred previous to the payment being made.” The judgment of the court below must therefore be affirmed. The other Justices concurred.