Cannon v. Laman

75 Tenn. 513

• Court: Tennessee Supreme Court
• Decided: September 15, 1881
• Status: Published

Opinions

Turney, 3".,

delivered the opinion of the court.

Ou the 13th of February, 1868, Cannon obtained judgment in the circuit court of Hamilton county against R. G. Ruston, - Crowder and Laman for $317.50. Several executions issued, commencing in March, 1868, on which payments were made, reducing the judgment to about $85.

On the 21st of June, 1880, an execution issued and was levied upon the property of Laman, who filed a petition for supersedeas, on the ground that the judgment was barred by the statute of limitations of ten. years, as provided by the Code, sec. 2776.

Motion to dismiss was overruled. The plaintiff proposed to plead and prove promises to pay within ten years, which was refused. The court quashed the ■execution.

In the case of McGrew v. Reasons, 3 Lea, 486, the question here was not involved, therefore the language employed in the argument of the judge delivering the opinion, on a supposititious case, though it may seem to pass upon this question, is not an adjudication.

The judgment being barred is merely evidence of debt upon which an action may be brought either by soi. fa. to revive, or in debt or assumpsit to recover the amount evidenced by it, to which pleas and replications may be used to make an issue involving the existence of the debt, the right to revive, and the ■effect of promises made within the time of the bar. An execution is not, in legal contemplation, an action, but the result of one. It cannot be made- to perform the office of a writ, or summons, or declaration, and therefore cannot be traversed. It is awarded by the judgment, which must be alive. The law limits the life of the judgment to ten years. At the end ■of that period it must, in some form tendering an issue, be revived by a new judgment. If a new promise has been made, then the old judgment may be the basis upon which the promise may be available in a proceeding to obtain a new judgment, the old ■one being merely evidence of debt.

Affirmed.