Shepard v. Lanier

241 S.W.2d 587, 192 Tenn. 608, 28 Beeler 608, 1951 Tenn. LEXIS 308

• Court: Tennessee Supreme Court
• Decided: March 9, 1951
• Status: Published

Opinions

Mr. Justice Burnett

delivered the opinion of the Court.

The question here presented and its factual background is well stated by the Court of Appeals as follows:

“This appeal presents a question of when the cause-of action on a judgment accrues within the meaning of Code Section 8601, providing that ‘actions . . .on judgments and decrees of courts of record of this or any other State or government . . . shall be commenced within ten years after the cause of action accrued. ’

“The present suit is on a judgment in favor of the present complainant, L. E. Lanier against the present defendants, Shepard and Jones, individually and as partners, entered on February 2, 1939 in the Circuit Court of Shelby County. The defendants in that action appealed in error to this Court, where the judgment of the Circuit Court was affirmed on October 13,1939. Upon affirmance a new judgment was entered in this Court, which in substance and effect incorporated the judgment entered in the Circuit Court, awarding the plaintiffs in that suit a recovery against the defendants in the principle snm of $7,500.00, and interest for which an execution was ordered to be issued.

“A petition for certiorari, filed November 22, 1939, whereby it was sought to have the judgment of this Court reviewed by the Supreme Court, was denied February 3, 1940. The present suit based on the judgment in the tort action was instituted on October 10, 1949.

“It will be observed that the present suit was brought within ten years of the entry of the judgment in this Court, affirming the judgment of the lower court, but not within ten years of the date on which the judgment of the lower court was entered. The Chancellor held that the statute had not run at the time the present suit was instituted and the defendants appealed. Their basic contentions are: (1) that the complainants’ cause of action accrued upon the rendition of the circuit court judgment on February 2, 1939; and (2) that the judgment of affirmance in this Court is not, irrespective of its form, an independent judgment of recovery, but a pronouncement that the judgment of the circuit court was right and should remain in force; that therefore, complainants cannot proceed as they seek to do here upon the judgment of affirmance, but if they can proceed at all, they must do so upon the judgment of the lower court.

“The courts seem to be divided on this question, and the allied question of whether, where no appeal is prayed, the statute begins to run from the date the judgment is entered, or from the expiration of the time within which an appeal might have been taken. These matters are regulated in the several states by statute and the divergence of opinion seems to be due in large measure to the difference in the applicable statutory provisions. However, the courts of California and Utah have reached opposite conclusions in construing statutes identical in terms. The latter hold that a judgment becomes final so as to start the running of the statute against an action thereon from the time it was rendered where no appeal was taken and not from the expiration of six months within which an appeal might have been taken under the statute of that state. Sweetser v. Fox, 43 Utah 40, 134 P. 599, 47 L. R. A., N. S., 145, Ann. Cas. 1916-C, 620, and note. The Court in that case expressly repudiates the contrary conclusion reached by the California court.

“The Montana court supports in principle the view prevailing in Utah. It is there held that under the statutes of that state the running of the statute of limitations is not suspended by an appeal with supersedeas. State of Montana v. Hart Refineries, 109 Mont. 140, 92 P. (2d) 766, 123 A. L. R. 555, and note. The theory of this view is that since the statute of that state does not in express terms create an exception, and there being none, the court would not create one. In this connection, it is said:

“ ‘No doubt, if an action is brought to renew a judgment where an appeal from the judgment is pending, the matter should be set up by a plea in suspension or abatement. This would not defeat the action, hut merely suspend the proceeding until disposition of the appeal. ’ ’ ’

Insofar as we have been able to ascertain, this question has never been determined by the Courts of this State. The question presented is indeed an interesting, intriguing and an important one. The Chancellor held that the statute had not run at the time the present suit was instituted. In this holding he was affirmed by the Court of Appeals because that court thought that the statute was tolled during the pendency of the appeal from the cirenit court to that court. Tlie reasoning largely back of this holding was that since the judgment of the circuit court could not be plead as an estoppel to a suit on it or as res adjudicata, Railroad v. Brigman, 95 Tenn. 624, 629, 32 S. W. (2d) 762, that therefore a suit could not be maintained on the judgment of the circuit court pending its appeal and thus the statute of limitations did not run until this appeal was finally determined. The defendants, 'Shepard, et al., against whom the judgment of the Chancellor and the Court of Appeals was rendered, have filed a petition for certiorari, seeking review of the record and reversal of the judgment of the Court of Appeals. We, after due consideration have granted said petition, have heard argument and the case is before us for disposition.

In this jurisdiction, the right of an appeal in the nature of a writ of error is allowed by Code, Section 9061. The remedy operates as a writ of error and supersedeas at common law. Thomasson v. Kercheval, 29 Tenn. 322. It does not annul or abrogate the judgment of the lower court as does a simple appeal from the decree in equity, but only suspends it. Jones v. Ducktown Sulphur, Copper & Iron Co., 109 Tenn. 375, 71 S. W. 821; Dodd & Son v. Nashville, C. & St. L. Railroad Co., 120 Tenn. 440, 110 S. W. 588; Fort v. Fort, 118 Tenn. 103, 101 S. W. 433, 11 Ann. Cas. 964. In the Court of Appeals “a new judgment is always rendered by this Court upon the affirmance of the judgment of an inferior court brought up by an appeal in the nature of a writ of error, or by writ of error. It is a mere renewal or continuance of the old judgment. And it has never been supposed that a lien, which is expressly saved by an affirmance, would be effected by a form of entry. The form of entry upon the dismissal of the supersedeas cannot have any greater effect. It was discretionary with the lower court to dismiss the supersedeas, and leave the original judgment in force, or to render a new judgment in affirmance of the old. The lien would be saved by the statute in either case.” Lincoln Sav. Bank v. Ewing, 80 Tenn. 598, 605.

Ordinarily and usually a judgment becomes actionable at the time of its rendition and entry. Sweetser v. Fox, 43 Utah 40, 134 P. 599, Ann. Cas. 1916-C, 625. A judgment is rendered when ordered or pronounced by the court. Southern Mortgage Guaranty Corp. v. King, 168 Tenn. 309, 77 S. W. (2d) 810.

It seems rather clear to us that since the affirmance of the judgment of the circuit court by the Court of Appeals “is a mere renewal or continuance of the old judgment” that then when this judgment is affirmed the rights of the parties revert to the entry of the judgment in the. circuit court. It is then, that is, upon the entry of the judgment in the circuit cour, that the cause of action on behalf of the plaintiff accrues and not upon its affirmance in the Court of Appeals. The judgment meantime is merely suspended or superseded pending its affirmance. When the instant plaintiffs secured their judgment in the circuit court they then had a lien upon the debtor’s land in the County of the rendition of that judgment. Code Section 8043. This lien was required to be enforced in conformity with Code Section 8045 within twelve months but where cases were appealed, as this case was, the legislature soon saw that it was necessary to provide a tolling of this Statute of one year within which to perfect this lien given by the judgment just referred to. Consequently the legislature passed two different Acts, Chapter 90 of 1831, and Chapter 21 of 1885, a tolling statute for Code Section 8045 (the one year for perfecting the lien) which is carried in the Code as Section 8046. As a result of this tolling Statute, this Court has many times held that in the case of appeal in the nature of a writ of error as here, where other statutory steps were taken, that the lien was not lost and could be perfected within one year after the appeal was dismissed or the judgment below affirmed. See Brinkley v. Welch, 75 Tenn. 278; Lincoln Sav. Bank v. Ewing, 80 Tenn. 598 and other cases. It is, therefore, obvious by the sections of the Code just above referred to that the rights of the parties accrued upon the rendition of the judgment in the circuit court. In one or more of the cases last above referred to this very point is very forcefully brought out. The judgments in one or two of these cases were rendered during the pendency of an appeal and the person securing the second judgment, while the appeal was pending, attempted to assert the second judgment as prior to the first because the necessary proceeding had not been taken within the year to assert the lien. The Court though very properly held that the legislature had passed these tolling Statutes which protected the person who first obtained the lien. Therefore, the one obtaining the lien in the first instance in the circuit court would prevail. See Brinkley v. Welch, supra; Lincoln Sav. Bank v. Ewing, supra.

In other words, a judgment which is a lien dates from its rendition and the cause of action thereon accrues at the time of the rendition of the judgment in the circuit court and not the Court of Appeals. It appears to us that we must view the question in the retrospect. We are viewing the question now after the Court of Appeals has affirmed this judgment. After the affirmance of the judgment the rights of the plaintiff in that judgment accrued upon the rendition of the judgment in the circuit court. This being true it certainly seems to us that the meaning of the legislature when they fixed this ten year Statute of Limitations, Code, Section 8601, and said that the cause “shall be commenced within ten years after the cause of action accrued” that they meant from the time that the plaintiff had a right. They certainly, viewing it in retrospect, had a right at the time of the rendition of the judgment in the circuit court.

In enacting this ten year limitation statute, Code Section 8601, the legislature did not provide any tolling, either in this statute or any other statute, insofar as we can determine. “The statutes of limitations are looked upon by the courts with favor as statutes of repose.” City of Knoxville v. Gervin, 169 Tenn. 532, 542, 89 S. W. (2d) 348, 352, 103 A. L. R. 877. It seems to us that if the legislature had seen fit to provide for a tolling period for the statute of limitations they would have, and they certainly could have, passed some kind of a tolling act as is now carried in the Code under Section 8046 herein-above referred to as a tolling act on the one year lien statute. The statute of limitations involved in the present case allows ten years from the time the cause of action accrues. Apparently the legislature considered this a sufficient length of time for an action to be brought on the judgment as originally rendered. Under our practice and under other provisions of the Code it is a very simple matter to renew this judgment before the ten years expires by either the suit on the judgment or by scire facias. Looking at the matter from this viewpoint and from the fact that it certainly seems that this is ample time and ample means have been taken by the legislature to preserve a judgment in force we cannot see any reason why the court should engraft on this statute a tolling period. To do so would to our minds be judicial legislation.

Mr. Freeman in his excellent work on Judgments, Yol. 2, 5th Edition, Section 722, page 1528, said: “But if the appeal is in the nature of a writ of error, conferring power on the appellate court to determine such errors as may have occurred at the trial or in the decision of the cause, and giving the court, upon such determination, no other authority than that of reversing, modifying, or affirming the judgment of the inferior court and of remitting the case back to the tribunal whence it came, that such tribunal may conform its judgments and proceedings to the views of its superior, then the judgment appealed from does not, until vacated or reversed, cease to operate as a merger and a bar. ’ ’

Even if the judgment of the circuit court which had been appealed was not an absolute bar to another proceeding in the same cause the court when properly apprised of the fact that a judgment had been rendered on the same facts between the same parties, and was now in the appellate court, would suspend any further action in that court until there was a final determination by the appellate court of the matter. In other words a judgment of the circuit court could be used for this purpose at least.

The Court of Appeals in part placed its decree in the present suit on its reasoning that the suit on the judgment and an execution on the judgment of the Court of Appeals should be considered from the same viewpoint. In reference to this Mr. Freeman in the volume and edition last above referred to at page 2231 said: “However, enforcement of a judgment by execution and by action cannot properly be placed upon tbe same basis since they are different both in theory and results. Enforcement by execution is wholly contingent upon the final outcome of the case in the event of an appeal, while enforcement by action, if permitted, would be wholly independent of such outcome except as the pendency of an appeal might be ground for a stay or continuance, or as a reversal might be ground for a new trial. ’ ’

We think this statement absolutely correct and applicable to the present situation.

As a matter of interest and help in deciding the present case and from an academic standpoint we have reviewed cases from many jurisdictions. All of these are interesting. The cases though are not in hármony by any means. Many of them are controlled by the statutes of the particular State or the interpretation that the court puts on that statute and none of them so far as we can determine are controlling in the instant case because of the different form of practice and statutory set up in this jurisdiction. The case of Sweetser v. Fox, 43 Utah 40, 134 P. 599; Ann. Cas. 1916-C, 145, and that of State of Montana v. Hart Refineries, 109 Mont. 140, 92 P. (2d) 766, 123 A. L. R. 555, are two of the leading cases on the question. To each of these cases is an annotation on the question involved. It just so happens that both of the cases referred to hold that the statute starts to run from its entry and rendition in the lower court. The California court takes a diametrically opposite viewpoint from that taken by the Utah court under an identical statute. As a matter of interest these two citations would be sufficient to refer the reader to other cases on the question. We have examined many, many other cases and find that almost without exception basically they are governed by some statute of the particular state in which the case is decided. True, there are one or two cases applying the principle of judicial legislation so to speak, in allowing a tolling of the statute during the pendency of the appeal on the equitable reasoning that the legislature intended to allow the number of years allowed in that particular state from .the finality of the judgment and not from the time it became a fixed right subject only to he reversed by appeal.

This Court has held, speaking through, Ltjkton, Judge, that in a suit to vacate satisfaction of a judgment and to recover a new judgment thereon is barred if not commenced within ten years from the date of the original judgment. Ballard v. Scruggs, 90 Tenn. 585, 18 S. W. 259.

This Court in Smith v. Holmes, 59 Tenn. 466, had under consideration the present Code 'Section 8046, before it was amended in 1885. At that time there was no provision in the tolling clause for a simple appeal. This court held that where there was a simple appeal that the cause then came up to be heard de novo and the lien secured by the judgment below was lost because the statute, as then written, did not have a saving clause as to a simple appeal. The Court said: “We may think also that the same policy which regards a writ of error or appeal in error as such legal obstruction, ought to regard a simple appeal as equally such an obstruction. But the Legislature has not chosen to include a simple appeal among the obstructions specially designated, and we know of no rule of construction by which we can supply what may seem to us an omission without any apparent reason therefor. We must either include a simple appeal within the reason of the policy of the law by judicial construction, tantamount to judicial legislation, or overturn a long line of adjudications which, hold that simple appeal vacates and annuls the judgment or decree appealed from.”

This is further fortification for our conclusion that since the legislature has not enacted a tolling period to or separately from the Statute of Limitations herein involved, Section 8601, that then under an established policy of this Court we should not so legislate but leave such matter up to the legislature entirely.

For the reasons above expressed it is our conclusion after a very thorough investigation, and much thought and study, that the Statute of Limitations involved runs from the time of the entry of the judgment in the circuit court and that when appealed and affirmed by the Court of Appeals that this time does not toll the Statute. It results therefore that the judgment of the lower courts will he reversed and the plea of the Statute of Limitations sustained.