BEALL V. CITY, OF LEAVENWORTH.
V.CITY OF LEAVENWORTH.
(Oircuit Vourt, D. Kansas. February 29, 1888.)
JunGMENT--'-AoTIONS ON-DEATH OF OWNER-LIMITATWflS.
In Kansas a judgment does not become dormant at the death of the owner, and an action brought thereon by his executor, morc th il.::J. one year after his death, but within one year after it became dormant, is not barred by Code Civil Proc. § 440, which provides that a judgment can only be revived, or made the basis of an action, within one year after it becomes dormant.
At Law. Action on judgment. Ros&ngton, Smith &: Dallas, for plaintiffs. Wm. C. Hook, for defendant. FOSTER,J. This is an action brought by John A. Beall and Charles W.Sloane, executors of Henry W. Benham's estate, on two judgments recovered by their testator in this court against the city of Leavenworth. Thefirst judgment was recovered on the 1st,day of December, 1877, for and costs,which judgment was reviVed on the 29th day of NolE82. The second judgment was recovered on the 30th day of Nove:mber, 1880, for $3,159.11 and costs. Benham died about the 9th daYiof June, 1884, and shortly thereafter letters tEstamentary were issued to his executors, and theybrQught this suit on the 18th day of December, 1885. Defendant sets up as answer to plaintiffs' claim that it is barred by the limitation of the statute for reviving or instituting suit on a judgment. At the time of Benham's death, neither judgment had become dormant, under section 445 of the Civil Code of Kansas, but it seems the latter judgment had become 20 days before this suit was brought, unless proceedings in mandamUs had the effect to save it, as would the issuing of an execution. However that is not matRrial. If the testator were alive, and had instituted this suit, there could be no question but he couldmaintll:in it. Burnes v. Simpson, 9 Kan. 658; Kothman v. Skaggs, 29 Kan. 6; Baker v. Hummer, 31 Kan. '325, 2 Pac. Rep. 808. In the cases above cited, the supreme court has repeatedly held that a judgment creditor may, if he choose, make his judgment the basis of an action, (within the time limited for a reviver of the same,) instead of reviving by motion and notice under the Code, It appears from the terms of the statute, as well as decided that this can only be done within a year, without the consent of the opposite party. Scroggs v. Tutt, 23 Kan. 181; AngeU v. Martin, 24 Kan. 334. Now,Jet us see what may be done in case of the death of a party to a judgment. Section 439, Civil Code, reads as follows: "If either or both parties die after the judgment and before satisfaction thereof, their representatives, real or personal, or both, as the case may require, may be made parties to the same in the same manner as prescribed fOl' reviving actions before judgment, and such judgment may be rendered and execuas might PI' ought to be given or awarded against the representatives. real or personal, or both, of such deceased pal'ty." v .34F.no.2-8 I
The judgment does not become dormant, within the meaning of section 445, by the death of the judgment creditor. It does not cease to be a lien on the estate of the judgment debtor. It is not necessary to revive it as a 'dormant judgment under section 440." It comes to the hands of the executor or administr6toras an asset of t1;1e, estate; and the statute provides that he may be made a party to the same. It comes to hishll.nds clothed with higher attributes than a mere chose in aotion, like anote or aocount. He is given a, year in which ,he may apply to the c()urt rendering the' judgment and be substitlitedor made a party plaintiff, in the place and stead of his testator or intestate. That being done, he may issue execution; or, if it becomes dormant, he may revive it. But if he fails within the year to be made a party to the judgment record, he has lost his right in that behalf, arid the' judgment can ol,)ly be made the ,blj.sis ofan action under the commpn law, tlnd thatwithin the time prescribed by the statute,-the same time withi.n could have brought the action.. In Burnesv. Sirtipsop" 9 Kan. 658, it implied, to say the least, that the sixth subdivision ofsectiori lS of the Code 'would fix the'period'oflimitation, whiQhw,qwd have beetifive years from the. time the right of action' accriteq,i. from the date of the but in later decisionsqf thesnpreme court been'decided that the. statute referred to not fix the time within thejudgmentcre4itor may'bring ". He within 'tqe year afterthe judgment pecomes do11Ji3:nf by a issue executiorL , That might be within six years or sIxty years from the rendition of the judgment. The of the judgment is immaterial. but the of its. becoming dormanqs all:-impormnt. Kot'h,'man V.Skagg8, 29 Kan.6; Bakerv. Hum325,2 Pac. ,Rep. 808.,: '. ,. ,".. " ' It canpotbenecessaryto cite authority to the1'01nt that the ative deceased person has the. same period in to bring shit that histesttttor oriritestat'e would have had. It thel'elore necessarily follows as the first judgment' had riot become dormant, and the second judg1nenthad beeJidormant hut ll. few days, this suit is not barreq, fqr plaintiffs. '.
TOWN OF ELMWOOD.
(Ot'reuit Oov,rt, N. D.lllinO'la. February 29, 18S8.)
OF LAWS-RAILROAI) COMPANIEs-MUNICIPAL
.' .' .. .. 1869,(8Priv.Laws 26th Gen. Assem. 378.) had for its object the'legalization of an election held 1nthe town of Elmwood, in Peoria. , county., on March 16, 1869, at which jtwa8 voted to, subscribe for. and. take '40,000 of the capital stock ,of,a cert;ain railroad over and. above the $35,000 which was on the same day Bubscrih.ea for and taken iu accordance with the provisions of the charter 'of thesaliI ·company.. These facts Iill appeared in the body of the statute, t>Ut the 'title "was siniply "An act to legalize a certain