Given, J.
1
As these cases involve the same question, they are argued and submitted together, and will be so disposed of. The petitions show: That judgments wer^ rendered in the circuit court of Jasper county, Iowa, against the plaintiff as follows: One in favor of D. S. Morgan & Co.. March 20, 1877; one in favor of S. W. Cobb & Co., March 20, 1877; and one in favor of James H. Elliott, January 19, 1877. That executions were issued on each of said judgments on the eleventh day.of August', 1899, and delivered to the defendant Tripp, sheriff, and that he levied the same upon certain lands belonging to this plaintiff, and was about to sell the same under said execution. The petitions also show that the plaintiff has been continuously a resident of Jasper county for more than thirty years last past, and that there has been no revivor of any of said judgments or of the debts for which they were rendered. It is alleged that the indebtedness for which these judgments were rendered was contracted prior to the enactment and taking effect of the Code of 1873. In the case against S. W. Cobb & Co. allegations are made showing a want of consideration for the indebtedness upon which that judgment
was rendered, but the judgment being conclusive as to such matters, they cannot now be considered. It will be seen from what we have said that over twenty-two years elapsed between the rendition of each of these judgments and the issuing of the execution thereon, and that nothing had occurred to stop the running of the statute of limitations as against the judgments.
2 3 4
II. Out of these facts we have the single question whether these judgments were barred at the time the executions were issued. To solve this, we must first ascertain what the limitation is. If it was as fixed by the Revision of 1860, in force when the debts were contracted, it was twenty years after the rendition of the judgments; if as fixed by the Code of 1873, as construed in
Weiser v. McDowell,
93 Iowa, 772, it was twenty years from the expiration of fifteen years next following the rendition of the judgments; and if as fixed by the present Code, it is twenty years from the rendition of the judgments. There is no dispute but that such are the limitations provided in said statutes; the contention is as to which applies to these cases. Section 50 of the Code of 1873, in relation to the repeal of former statutes, provides as follows: “Sec. 50. The repeal of existing statutes shall not affect any act done, .any right accruing or which has accrued or been established, nor any suit or proceeding had or commenced in any civil cause before the time when such repeal takes effect; but the pro*ceedings in such cases shall be conformed to the provisions of this Code as far as consistent.” Plaintiff contends, that the rights under these contracts of indebtedness were rights accruing when the Code of 1873 went into- effect; that the limitations pertaining thereto and to judgments thereon were part of such rights, and that said rights are expressly reserved from the operation of the repeal, and left to be governed by the former statute. , Defendants contend that rights as to the limitation of actions upon said judgments were not accruing nor accrued rights at the time the Code
■of 1873 took effect, and that, said judgments having been rendered under that Code, the limitation therein provided applies, not the limitation provided in the Revision of 1860. “It is a fundamental principle recognized by this and other courts that the statute of limitations pertains to the remedy only, and not to the essence or merits of an obligation.”
Weiser v. McDowell, supra,
and cases cited. The rights referred to in said section 50 are those arising upon the contracts, not such as pertain exclusively to the remedy. “It is undoubtedly within the statutory power of the legislature to require, as to existing causes of action, that suits for their enforcem'ent should be barred unless brought within a period less than that prescribed at the time the contract was made or the liability incurred from which the cause of action arose. The exercise of this power is, of course, subject to the fundamental condition that a reasonable time, taking all the circumstances into consideration, be given by the new law for the commencement of an action before the bar takes effect.”
Koshkonong v. Burton,
104 U. S. 668 (26 L. Ed. 886); 15 Am. & Eng. Enc. Law, 695, 696, and notes. The limitation under consideration is not as to the contracts of indebtedness, but as to the judgments thereon. “Every judgment is, as a general rule, to be regarded as a new debt, not in any way affected by the character of the old one, * * * and, when the court is called upon to enforce it, no inquiry will be made concerning the facts preceding the judgment, to ascertain whether the original demand was one which it would have indorsed.” 15 Am. & Eng. Enc. Law, 338; Ereeman Judgments (3d ed., 517. Plaintiff cites
Cochran v. Taylor,
13 Ohio St. 382. That was an action on a bond, which the court held to be an accruing right, and reserved by a statute similar to said section 50. If these were actions upon the contract of indebtedness, the case would be in point, but our question is as to the limitation of the judgments. Our con
elusion is that the limitation provided in the revision of 1860 does not apply to these judgments.
5 6
III. Plaintiff’s next contention is that, if the revision of 1860. does not apply, the Code of 1897 does, and that by its provisions the judgments are barred. Sections 51 and 3439 of the Code of 1897 are the same as sections 50 and 2521 of the Code of 1873, except that section 3439 provides, in addition, that: “The time during which an action on a judgment is prohibited by this section shall not be excluded in computing the statutory period of limitation for an action thereon.” It is urged in argument that, “if the Code of 1873> does not expressly reserve the rights arising under the revision, then with equal equity the Code of 1897 does not expressly reserve rights arising prior thereto, and the Code of 1897 would govern and con ■ trol herein.” The ready answer to this argument is that there were no judgments in these cases to which the revision could apply; there were no accruing nor accrued rights as to the limitations upon these judgments when the Code of 1873 was enacted, but not so when the Code of 1897 went into effect. These judgments were rendered under the Code of 1873, and, as we have seen, the limitation provided in the revision did not apply. Therefore, unless the limitation of the Code of 1873 applies, they were without limitation from the time of their rendition until the time the Code of 1897 took effect. Another ready answer is that, if the Code of 1897 applies, it did so immediately upon its taking effect. In
Kennedy v. City of Des
Moines, 84 Iowa, 189, it is said: “It is a familiar doctrine that it is not competent for the legislature by a statute of limitation to take away all remedies existing upon causes of action, and by this exercise of power the legislature will bar recovery thereon.
Free access — add to your briefcase to read the full text and ask questions with AI
Given, J.
1
As these cases involve the same question, they are argued and submitted together, and will be so disposed of. The petitions show: That judgments wer^ rendered in the circuit court of Jasper county, Iowa, against the plaintiff as follows: One in favor of D. S. Morgan & Co.. March 20, 1877; one in favor of S. W. Cobb & Co., March 20, 1877; and one in favor of James H. Elliott, January 19, 1877. That executions were issued on each of said judgments on the eleventh day.of August', 1899, and delivered to the defendant Tripp, sheriff, and that he levied the same upon certain lands belonging to this plaintiff, and was about to sell the same under said execution. The petitions also show that the plaintiff has been continuously a resident of Jasper county for more than thirty years last past, and that there has been no revivor of any of said judgments or of the debts for which they were rendered. It is alleged that the indebtedness for which these judgments were rendered was contracted prior to the enactment and taking effect of the Code of 1873. In the case against S. W. Cobb & Co. allegations are made showing a want of consideration for the indebtedness upon which that judgment
was rendered, but the judgment being conclusive as to such matters, they cannot now be considered. It will be seen from what we have said that over twenty-two years elapsed between the rendition of each of these judgments and the issuing of the execution thereon, and that nothing had occurred to stop the running of the statute of limitations as against the judgments.
2 3 4
II. Out of these facts we have the single question whether these judgments were barred at the time the executions were issued. To solve this, we must first ascertain what the limitation is. If it was as fixed by the Revision of 1860, in force when the debts were contracted, it was twenty years after the rendition of the judgments; if as fixed by the Code of 1873, as construed in
Weiser v. McDowell,
93 Iowa, 772, it was twenty years from the expiration of fifteen years next following the rendition of the judgments; and if as fixed by the present Code, it is twenty years from the rendition of the judgments. There is no dispute but that such are the limitations provided in said statutes; the contention is as to which applies to these cases. Section 50 of the Code of 1873, in relation to the repeal of former statutes, provides as follows: “Sec. 50. The repeal of existing statutes shall not affect any act done, .any right accruing or which has accrued or been established, nor any suit or proceeding had or commenced in any civil cause before the time when such repeal takes effect; but the pro*ceedings in such cases shall be conformed to the provisions of this Code as far as consistent.” Plaintiff contends, that the rights under these contracts of indebtedness were rights accruing when the Code of 1873 went into- effect; that the limitations pertaining thereto and to judgments thereon were part of such rights, and that said rights are expressly reserved from the operation of the repeal, and left to be governed by the former statute. , Defendants contend that rights as to the limitation of actions upon said judgments were not accruing nor accrued rights at the time the Code
■of 1873 took effect, and that, said judgments having been rendered under that Code, the limitation therein provided applies, not the limitation provided in the Revision of 1860. “It is a fundamental principle recognized by this and other courts that the statute of limitations pertains to the remedy only, and not to the essence or merits of an obligation.”
Weiser v. McDowell, supra,
and cases cited. The rights referred to in said section 50 are those arising upon the contracts, not such as pertain exclusively to the remedy. “It is undoubtedly within the statutory power of the legislature to require, as to existing causes of action, that suits for their enforcem'ent should be barred unless brought within a period less than that prescribed at the time the contract was made or the liability incurred from which the cause of action arose. The exercise of this power is, of course, subject to the fundamental condition that a reasonable time, taking all the circumstances into consideration, be given by the new law for the commencement of an action before the bar takes effect.”
Koshkonong v. Burton,
104 U. S. 668 (26 L. Ed. 886); 15 Am. & Eng. Enc. Law, 695, 696, and notes. The limitation under consideration is not as to the contracts of indebtedness, but as to the judgments thereon. “Every judgment is, as a general rule, to be regarded as a new debt, not in any way affected by the character of the old one, * * * and, when the court is called upon to enforce it, no inquiry will be made concerning the facts preceding the judgment, to ascertain whether the original demand was one which it would have indorsed.” 15 Am. & Eng. Enc. Law, 338; Ereeman Judgments (3d ed., 517. Plaintiff cites
Cochran v. Taylor,
13 Ohio St. 382. That was an action on a bond, which the court held to be an accruing right, and reserved by a statute similar to said section 50. If these were actions upon the contract of indebtedness, the case would be in point, but our question is as to the limitation of the judgments. Our con
elusion is that the limitation provided in the revision of 1860 does not apply to these judgments.
5 6
III. Plaintiff’s next contention is that, if the revision of 1860. does not apply, the Code of 1897 does, and that by its provisions the judgments are barred. Sections 51 and 3439 of the Code of 1897 are the same as sections 50 and 2521 of the Code of 1873, except that section 3439 provides, in addition, that: “The time during which an action on a judgment is prohibited by this section shall not be excluded in computing the statutory period of limitation for an action thereon.” It is urged in argument that, “if the Code of 1873> does not expressly reserve the rights arising under the revision, then with equal equity the Code of 1897 does not expressly reserve rights arising prior thereto, and the Code of 1897 would govern and con ■ trol herein.” The ready answer to this argument is that there were no judgments in these cases to which the revision could apply; there were no accruing nor accrued rights as to the limitations upon these judgments when the Code of 1873 was enacted, but not so when the Code of 1897 went into effect. These judgments were rendered under the Code of 1873, and, as we have seen, the limitation provided in the revision did not apply. Therefore, unless the limitation of the Code of 1873 applies, they were without limitation from the time of their rendition until the time the Code of 1897 took effect. Another ready answer is that, if the Code of 1897 applies, it did so immediately upon its taking effect. In
Kennedy v. City of Des
Moines, 84 Iowa, 189, it is said: “It is a familiar doctrine that it is not competent for the legislature by a statute of limitation to take away all remedies existing upon causes of action, and by this exercise of power the legislature will bar recovery thereon. Such statutes, to accord with constitutional guaranties, must preserve a reasonable time wherein actions may be brought.” See, also,
Casady v. Grimmelman,
108 Iowa, 695. Such is the uniform hold
ing of all courts. We think the provisions of the Code of 1873 applied at once to these judgments upon their rendition; that, therefore, rights as to their limitation under that statute accrued, and were saved from the operation of the repeal of the Code of 1873. A manifest difference is that no right existed as to the limitation of these judgments when the revision was repealed, while such rights had accrued and were existing when the Code of 1897 took effect. This disposes of the questions involved in the merits of the cases, and leads to the conclusion that the judgment of the district court is correct, and should be affirmed.
Motion to Set Aside Supersedeas.
7
IV. Pending this appeal, on application by the plaintiff to one of the judges of this court, an order was made restraining the defendants from proceeding further under said executions, pending the appeal, or until otherwise ordered, upon plaintiff’s executing a bond in each case in a sum named, conditioned to pay costs and damages if the order was improperly granted. The order expressly preserved to the defendants all rights under their executions and the levies made, and with leave to move the court to set aside those orders or to increase the bonds. . The defendants filed their motions to set aside said orders, and in support thereof it is insisted that the making of the orders was not authorized by law. There is no provision in the statute for making such orders, but this court has many times held that where, without such order, the objects of the appeal will be defeated, and the rights of the appellant irreparably prejudiced, the court will, in preservation of its own jurisdiction, make such orders. See
Luce v. Fensler, 85
Iowa, 596, as somewhat in point. It is suggested that the amounts of the bonds required were insufficient, but, if so, this would be remedied by a motion to increase the amount, rather than to dismiss the action. The other grounds of the motion involved the merits of the case, which we have
already considered. There was authority for granting the order, and, so far as appears, the amounts of the bonds were sufficient. As to these points, the motion is overruled.