Hickman v. Macon County

42 F. 759, 1890 U.S. App. LEXIS 2238

Opinion

Thayer, J.,

(orally, after stating the facts as above.) It has been held that a suit on a judgment may be maintained in the same court in which the judgment was recovered, although tlie time has not expired within which an execution may be sued out on the judgment. Such rulings, it seems, are based on the ground that the right to an execution on a judgment is merely cumulative, and does not take away the common-law right to sue on an unpaid judgment as often as the judgment creditor elects to sue. Simpson v. Cochran, 23 Iowa, 81, 92 Amer. Dec. 410, and cases cited. This doctrine would probably have tobe accepted with the qualification that, in case of more than one judgment being recovered on the same demand, a payment of either in full, with costs, would render the judgment creditor responsible for the costs made in the other proceedings. The law seems to be very well settled, however, that suits on judgments in courts other than that in which they were recovered may be maintained at the will of judgment creditors, regardless of the fact that the time allowed, either by statute or the common-law, for taking out an execution on the original judgment, has not expired. Simpson v. Cochran, supra; Kingsland v. Forrest, 52 Amer. Dec. 232; Freem. Judgm. § 432, and citations. Judgment will be entered for plaintiff.