Moline, Milburn & Stoddard Co. v. Van Boskirk

Nebraska Supreme Court

Moline, Milburn & Stoddard Co. v. Van Boskirk

111 N.W. 605, 78 Neb. 728, 1907 Neb. LEXIS 226

CourtNebraska Supreme Court

DecidedApril 4, 1907

DocketNo. 14,756

StatusPublished

Cited by1 cases

This text of 111 N.W. 605 (Moline, Milburn & Stoddard Co. v. Van Boskirk) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Moline, Milburn & Stoddard Co. v. Van Boskirk, 111 N.W. 605, 78 Neb. 728, 1907 Neb. LEXIS 226 (Neb. 1907).

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Opinion

Jackson, C.

The Kingman Implement Company, as successor to the Moline, Milburn & Stoddard Company, had an order reviving a dormant judgment against the defendant, from which the defendant appeals.

The case was submitted on briefs, and, as we understand the contention of the appellant, it is that the King-man Implement Company is the assignee of the judgment, and, as such is not authorized, under the statute,, [729]*729to procure the revivor; and that, having taken the assignment more than five years prior to the application to revive, the action is barred by the statute of limitations. The action, hoivever, is not an original one, nor does it rest on an assignment. It is a continuation of an action previously commenced. Bankers Life Ins. Co. v. Robbins, 59 Neb. 170; Vogt v. Binder, 76 Neb. 361. And the assignee might, under the code, proceed to procure the revivor in the name of the original judgment creditor. Vogt v. Binder, supra. Or it might, as the real party in interest, proceed in its oivn name.

That the general laAv as to the statute of limitations does not apply to the proceeding to revive dormant judgments has been too often determined in this court to refluiré a further discussion.

It is recommended that the judgment of the district court be affirmed.

Duffie and Albert, CO., concur.

By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is

Affirmed.

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Jackson, C.

The Kingman Implement Company, as successor to the Moline, Milburn & Stoddard Company, had an order reviving a dormant judgment against the defendant, from which the defendant appeals.

The case was submitted on briefs, and, as we understand the contention of the appellant, it is that the King-man Implement Company is the assignee of the judgment, and, as such is not authorized, under the statute,, [729]*729to procure the revivor; and that, having taken the assignment more than five years prior to the application to revive, the action is barred by the statute of limitations. The action, hoivever, is not an original one, nor does it rest on an assignment. It is a continuation of an action previously commenced. Bankers Life Ins. Co. v. Robbins, 59 Neb. 170; Vogt v. Binder, 76 Neb. 361. And the assignee might, under the code, proceed to procure the revivor in the name of the original judgment creditor. Vogt v. Binder, supra. Or it might, as the real party in interest, proceed in its oivn name.

That the general laAv as to the statute of limitations does not apply to the proceeding to revive dormant judgments has been too often determined in this court to refluiré a further discussion.

It is recommended that the judgment of the district court be affirmed.

Duffie and Albert, CO., concur.

By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is

Affirmed.

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111 N.W. 605, 78 Neb. 728, 1907 Neb. LEXIS 226, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moline-milburn-stoddard-co-v-van-boskirk-neb-1907.

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