The opinion of the court was delivered by
Smith, J. :
In January, 1890, the Attica State Bank commenced a suit against the Attica Sugar Company to recover on certain bonds and to foreclose a mortgage given to secure them. The Keystone Iron-works Company was made a party defendant, as well as other parties having liens against the mortgaged property. On June 10,1891, a final decree was entered marshaling the liens. It was adjudged that the Attica Sugar Company was indebted to the Keystone [44]*44Iron-works Company in the sum of $13,032.60, and that the plaintiff in error, George W. Watson, and other persons, were sureties on the said debt to the amount of $11,774.90. The judgment against the Attica Sugar Company, as principal, and the sureties mentioned, included a decree of foreclosure of a mechanic’s lien filed by the Keystone Iron-works Company against the property of the sugar company, and the decree fixed this lien, in common with others, on one tract of real estate, and adjudged it a second lien, subject to that of plaintiff below, on another tract.
Six orders of .sale were issued at the instance of the bank. These orders of sale followed the language of the decree, setting forth the amount due each of the lien-holders, of whom there were more than twenty. Each of the several orders of sale concluded with the following direction to the sheriff:
“These are, therefore, to command you to cause the said above-described property to be appraised, advertised and sold according to law, separately, as described, and from the proceeds of such sale pay, first, the costs and expenses of suit and sale; second, the judgment and the interest; the residue, if any, to be paid into court to abide the order of said court.”
Four orders to carry out the decree were issued and returned without sale, three in 1891 and one in 1893. On March 29, 1894, under a pluries order the real estate was sold; and under another, issued in January, 1895, certain pumps and fixtures were sold.
On June 20, 1896 (five years and ten days after the rendition of judgment), an execution was issued at the request of the Keystone Iron-works Company. This writ, after reciting that a part of the debt for which Watson and his sureties were liable had been paid, ordered that the sheriff, of the goods and chattels of the Attica Sugar Company and the Kansas [45]*45State Sugar Company, as principals, and George W. Watson and others, as sureties, cause to be made the amount of $11,774.90, and $2485.90 interest on the same, being the amount remaining due, and, for want of goods and chattels, that the amount be made out of the lands and tenements of the debtors. This execution was returned “No property found.”
The above facts bring us to a consideration of the question whether the issuance of these orders of sale had the effect to keep the judgment alive, and to stay its dormancy for five years from the time the last one was issued. Section 4895 of the General Statutes of 1901 provides:
“If execution shall not be sued out within five years from the date of any judgment that now is or may hereafter be rendered in any court of record in this state, or if five years shall have intervened between the date of the last execution issued on such judgment and the time of suing out another writ of execution thereon, such judgment shall become dormant, and shall cease to operate as a lien on the estate of the judgment debtor.”
Keeping a judgment in force by execution must find its authorization in the above section of the law. If the section quoted is construed to comprehend executions “against the property of the judgment debtor” only, commonly called “general executions,” under which head it appears in the statute, then the suing out of special executions or orders of sale was ineffectual to prevent a dormancy of the money judgment rendered against Watson and his cosureties.
Section 4892 of the General Statutes of 1901 reads :
“Executions are of four kinds: First, against the property of the judgment debtor; second, against his person ; third, for the delivery of the possession of real or personal property, with damages for withhold[46]*46ing the same, and costs ; fourth, executions in special cases.”
This separation into classes we find in the General Statutes of 1868 (ch. 80, art. 20), which was adopted by the legislature with the headings to chapters and divisions as made by the commissioners. Under the head of “Executions against the Property of the Judgment Debtor” is found section 4895, General Statutes of 1901, supra. The section following this (§4896) gives the contents of such an execution, namely :
“The writ of execution against the property of the judgment debtor, issuing from any court of record in this state, shall command the officer to whom it is directed that of the goods and chattels of the debtor he cause to be made the money specified in the writ; and for want of goods and chattels, he cause the same to be made of the lands and tenements of the debtor ; and the amount of the debt, damages and costs for which the judgment is entered shall be indorsed on the execution.”
The next division is entitled “Proceedings in Aid of Execution”; the next, “Executions against the Person” ; the third, “Executions for the Delivery of Real or Personal Property”; and finally, “Executions in Special Cases.” Under the last head there is but one section of the statute, which reads :
“In special cases not hereinbefore provided for, the execution shall conform to the judgment or order of the court. When a judgment for any specified amount, and also for the sale of specific real or personal property, shall have been rendered, and an amount sufficient to satisfy the amount of the debt or damages and costs be not made from the sale of property specified, an execution may issue for the balance, as in other cases.” (Gen. Stat. 1868, ch. 80, §517; Gen. Stat. 1901, §4994.)
In the General Statutes of 1901 (§§4927-4954) the compiler has arbitrarily inserted, under the heading [47]*47of “Executions-against the Property of the Judgment Debtor,” chapter 109 of the Laws of 1893, relating to the redemption of real estate sold on execution, special execution, or order of sale. This arrangement, made for convenience merely, is of no significance.
In the case of Norton v. Reardon, 67 Kan. 302, 72 Pac. 861, we recently held that the direction to the sheriff, found in section 4915, General Statutes of 1901, that he shall return a writ of execution within sixty days from its date, had no application to executions in special cases like those under consideration. The section fixing the time for a return is found with others under the head of “Executions against the Property of the Judgment Debtor.”
It certainly would not be contended that section 4895, General Statutes of 1901, supra, which provides the only method of keeping a judgment alive, by the suing out of an execution, and which section, as we have seen, relates to executions against the property, can have any application to executions against the person, provided for in section 4982, General Statutes of 1901, which reads :
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The opinion of the court was delivered by
Smith, J. :
In January, 1890, the Attica State Bank commenced a suit against the Attica Sugar Company to recover on certain bonds and to foreclose a mortgage given to secure them. The Keystone Iron-works Company was made a party defendant, as well as other parties having liens against the mortgaged property. On June 10,1891, a final decree was entered marshaling the liens. It was adjudged that the Attica Sugar Company was indebted to the Keystone [44]*44Iron-works Company in the sum of $13,032.60, and that the plaintiff in error, George W. Watson, and other persons, were sureties on the said debt to the amount of $11,774.90. The judgment against the Attica Sugar Company, as principal, and the sureties mentioned, included a decree of foreclosure of a mechanic’s lien filed by the Keystone Iron-works Company against the property of the sugar company, and the decree fixed this lien, in common with others, on one tract of real estate, and adjudged it a second lien, subject to that of plaintiff below, on another tract.
Six orders of .sale were issued at the instance of the bank. These orders of sale followed the language of the decree, setting forth the amount due each of the lien-holders, of whom there were more than twenty. Each of the several orders of sale concluded with the following direction to the sheriff:
“These are, therefore, to command you to cause the said above-described property to be appraised, advertised and sold according to law, separately, as described, and from the proceeds of such sale pay, first, the costs and expenses of suit and sale; second, the judgment and the interest; the residue, if any, to be paid into court to abide the order of said court.”
Four orders to carry out the decree were issued and returned without sale, three in 1891 and one in 1893. On March 29, 1894, under a pluries order the real estate was sold; and under another, issued in January, 1895, certain pumps and fixtures were sold.
On June 20, 1896 (five years and ten days after the rendition of judgment), an execution was issued at the request of the Keystone Iron-works Company. This writ, after reciting that a part of the debt for which Watson and his sureties were liable had been paid, ordered that the sheriff, of the goods and chattels of the Attica Sugar Company and the Kansas [45]*45State Sugar Company, as principals, and George W. Watson and others, as sureties, cause to be made the amount of $11,774.90, and $2485.90 interest on the same, being the amount remaining due, and, for want of goods and chattels, that the amount be made out of the lands and tenements of the debtors. This execution was returned “No property found.”
The above facts bring us to a consideration of the question whether the issuance of these orders of sale had the effect to keep the judgment alive, and to stay its dormancy for five years from the time the last one was issued. Section 4895 of the General Statutes of 1901 provides:
“If execution shall not be sued out within five years from the date of any judgment that now is or may hereafter be rendered in any court of record in this state, or if five years shall have intervened between the date of the last execution issued on such judgment and the time of suing out another writ of execution thereon, such judgment shall become dormant, and shall cease to operate as a lien on the estate of the judgment debtor.”
Keeping a judgment in force by execution must find its authorization in the above section of the law. If the section quoted is construed to comprehend executions “against the property of the judgment debtor” only, commonly called “general executions,” under which head it appears in the statute, then the suing out of special executions or orders of sale was ineffectual to prevent a dormancy of the money judgment rendered against Watson and his cosureties.
Section 4892 of the General Statutes of 1901 reads :
“Executions are of four kinds: First, against the property of the judgment debtor; second, against his person ; third, for the delivery of the possession of real or personal property, with damages for withhold[46]*46ing the same, and costs ; fourth, executions in special cases.”
This separation into classes we find in the General Statutes of 1868 (ch. 80, art. 20), which was adopted by the legislature with the headings to chapters and divisions as made by the commissioners. Under the head of “Executions against the Property of the Judgment Debtor” is found section 4895, General Statutes of 1901, supra. The section following this (§4896) gives the contents of such an execution, namely :
“The writ of execution against the property of the judgment debtor, issuing from any court of record in this state, shall command the officer to whom it is directed that of the goods and chattels of the debtor he cause to be made the money specified in the writ; and for want of goods and chattels, he cause the same to be made of the lands and tenements of the debtor ; and the amount of the debt, damages and costs for which the judgment is entered shall be indorsed on the execution.”
The next division is entitled “Proceedings in Aid of Execution”; the next, “Executions against the Person” ; the third, “Executions for the Delivery of Real or Personal Property”; and finally, “Executions in Special Cases.” Under the last head there is but one section of the statute, which reads :
“In special cases not hereinbefore provided for, the execution shall conform to the judgment or order of the court. When a judgment for any specified amount, and also for the sale of specific real or personal property, shall have been rendered, and an amount sufficient to satisfy the amount of the debt or damages and costs be not made from the sale of property specified, an execution may issue for the balance, as in other cases.” (Gen. Stat. 1868, ch. 80, §517; Gen. Stat. 1901, §4994.)
In the General Statutes of 1901 (§§4927-4954) the compiler has arbitrarily inserted, under the heading [47]*47of “Executions-against the Property of the Judgment Debtor,” chapter 109 of the Laws of 1893, relating to the redemption of real estate sold on execution, special execution, or order of sale. This arrangement, made for convenience merely, is of no significance.
In the case of Norton v. Reardon, 67 Kan. 302, 72 Pac. 861, we recently held that the direction to the sheriff, found in section 4915, General Statutes of 1901, that he shall return a writ of execution within sixty days from its date, had no application to executions in special cases like those under consideration. The section fixing the time for a return is found with others under the head of “Executions against the Property of the Judgment Debtor.”
It certainly would not be contended that section 4895, General Statutes of 1901, supra, which provides the only method of keeping a judgment alive, by the suing out of an execution, and which section, as we have seen, relates to executions against the property, can have any application to executions against the person, provided for in section 4982, General Statutes of 1901, which reads :
“An execution against the person of the judgment debtor shall require the officer to arrest such debtor and commit him to the jail of the county until he pay the judgment or is discharged according to law.”
If the issuing of a special execution, which must conform to the order of the court, prevents dormancy, then an execution against the person must perform the same service. The claim that both of the last-mentioned executions are included within the meaning of section 4895 cannot be sustained. If said section includes executions in special cases, it certainly includes executions against the person. Again, it must be kept in mind that that section of the law which permits a judgment to receive a five-year lease [48]*48of life, after the suing out of an execution on it, uses the expression “writ of execution.” It is a misnomer to call a special execution, which is nothing more than an order of sale, a “writ.” In section 4994 the lawmakers were careful to omit the word “writ,” when referring to a special execution.
In Norton v. Reardon, supra, it was said :
“Those sections of the statute which provide for a levy of an execution on real estate of the judgment debtor before its sale by the officer can have no application to judicial sales ordered by the court, like that in the present case, where the property on which a lien was fixed was designated in the decree, and ordered sold to satisfy the amount of the charge against it.”
Under a special execution or order of sale the right to sell the property attaches in consequence of the decree of the court.
The question before us has received consideration in Ohio, under statutory provisions like ours. In Beaumont et al. v. Herrick, 24 Ohio St. 445, 456, the court said:
“It is also claimed the decrees became dormant, under section 422 of the code, before the issuing of the last orders of sale, and that for this reason the sale is invalid.
“All judicial sales in this state require confirmation by the court before they can be completed. Without conceding, therefore, that under our system, such sales can be impeached, on the ground of the dormancy of the judgment, otherwise than by a proceeding in error to reverse the order of confirmation, it is sufficient to say, in answer to the present objection, that we are satisfied the section of the code referred to has no application to decrees for the sale of specific real property.
“The section provides that if execution shall not be sued out within five years from the date of a judgment, or if five years shall intervene between the date of the last execution and the suing out of another writ [49]*49of execution, the judgment shall become dormant, and cease to operate as a lien on the estate of the judgment debtor. This section has sole reference to judgments for money which are to be enforced by the writ of execution. The succeeding section prescribes what a writ of execution shall contain, and shows that it is wholly inapplicable to the enforcement of decrees in equity for the sale of specific property.”
In Moore v. Ogden, 35 Ohio St. 430, it was held that a decree of foreclosure of a mortgage did not become dormant although no attempt was made to enforce it for more than twenty years. The same opinion was given in Nebraska. (Herbage v. Ferree, 65 Neb. 451, 91 N. W. 408.)
Counsel for defendant in error contends that if the issuance of a special execution does not keep the decree of foreclosure in force for five years from the date of such execution, then however diligently the plaintiff may have tried to sell the property, if he failed, the money judgment against the sureties would become dormant, and a judgment creditor without fault might suffer loss. It is the “suing out” of a writ of execution which extends the validity of a judgment. (Saville v. Schroyer, 65 Kan. 303, 68 Pac. 1130.) In the case cited the execution was never returned.
The case of The State v. McArthur, 5 Kan. 280, seems to be at variance with the views above expressed. There is a confusing suggestion, however, at the close of that opinion, in which the court declines to discuss the question whether the lien of the mortgage continues to exist after dormancy of the judgment. To •clear the path of obstacles which might embarrass or mislead litigants in the proper interpretation of those sections of the statute on which'we have commented, the case of The State v. McArthur is overruled.
[50]*50The ruling of the court below will be reversed, with directions to overrule the motion to revive the judgment.
Cunningham, Greene, Pollock, JJ., concurring.