Burns v. Conner

23 P. 836, 1 Wash. 6, 1890 Wash. LEXIS 4

• Court: Washington Supreme Court
• Decided: January 22, 1890
• Docket: No. 615
• Status: Published

Opinion

The opinion of the court was delivered by

Anders, C. J.

Plaintiff in error recovered judgment against the defendant in the court below, on the 4th day of December, 1878, for the sum of $611.42, together with interest and costs. No part of the judgment having been paid, in March, 1888, the plaintiff filed his motion in the court below, in pursuance of the provisions of chapter 29 of the Code of Washington, to revive said judgment and to continue the lien of the same, and for leave to issue execution.

To this motion the defendant interposed a demurrer, on the ground that the same did not state facts sufficient to constitute a canse of action, and because it appeared upon the face thereof that no judgment in said cause had been entered within six years before filing the motion.

Prom the judgment of the district court sustaining the demurrer the plaintiff appeals to this court, and assigns the decision of the court below as error.

We are of the opinion that the proceeding prescribed by statute to revive the lien of a judgment is not the commencement of an action, but only a mode by which to secure the fruits of an action already had and determined between the parties, and that § 27 of the code is not applicable thereto. 5 Wait’s Actions and Defences, 641-643; Murch v. Moore, 2 Or. 189; Tyler's Ex'rs v. Winslow, 15 Ohio St. 364.

We are also of the opinion that § 27 of the code limiting to six years the time within which an action may be commenced upon a judgment or decree of any court of the United States, or of any state or territory within the United States, when viewed in connection with chapter 29, does not apply to judgments rendered by the courts of this state or of the late territory.

The district court erred in sustaining the demurrer to plaintiff’s motion. The judgment is therefore reversed, •and the cause remanded to the court below with directions to overrule the demurrer.

Hoyt, Soott, Dunbar and Stiles, JJ., concur.