612
I'BDERAL REPORTER,
vol. 40.
sidered by the court to state, in each of those respects, a good cause of action. A portion of the matter to which the demurrer ()f the defendant railroad company went was a material part of each of those causes of action, as well as of that as to which the bill was held insufficient, particularly the allegations in relation to the making of the grants, and for that reason all of the demurrers we,re properly overruled. The amendment to the amended bill was filed without objection, prior to the commencement of the argument on the demurrers, and the matter therein set up was argued orally and in the brief of one of the parties, and was therefore considered and passed upon by the court in its opinion. The motion to modify the order sustaining the demurrers is therefore denied. That on the part of the complainant for leave to file a second amended bill .I think should be granted. As at present advised, the additional matter, as explained by counsel. does not seem to metobe material to the real questions involved; but I think it but fair that every fact deemed by counsel to be material should be allowed to reach the supreme court, in which tribunal, no doubt, the important questions at issue will receive their final solution. Motion for leave to file second amended bill granted.
BROCKWAY f1. TOWNSHIP OF OSWEGO.
(OircwU Oourt, D.
Kensaa. November 25, 1889.)
1.
DORMANT JUDGMENT-TOWNS.
Code Civil Proc. Kan. § 445, providing that "if execution shall not be sued out within five years from the date of any judgment" the. judgment shall become dormant, applies to judgments against towns, as manaamw is equivalent to execution.
I.
SAME-RBVIVOB.
a.
Under section 440. authorizinlt dormant judgments to be revived in the same manner 118 is prescribed for reviving aotions before judgment, & judgment against. town which hasbeoome dormant may,be revi.ved in the manner presoribed. '
.
BAME-LmIT,l.TION-SUSPENSION 011' PERIOD.
Section 428 provides that, unless the parties to an aotion whioh has abated, con$lnt to a revivor notice of application therefor must be served in the same manner as a summons. Section 21 provides that "if, when a cause of action acorues against 'a person, he be Out of the state, or has absconded or concealed himself, the period limited for the commencement of theactiO,n shall not begin,to run until he comes into the state. or while he is so absconded or conoealed." HeW, that a period of time during which the town had rio qualified officers on wbom process could be served, and purposely refrailledfromqualifying them to avoid the judgment. should be omItted from the period of mnitatlon for reviviDB the judgment, the creditor having exercised due dilill'ence.
At Law. Ro88ington, Smith Da7las, for plaintiff. Case Gla8s, for defendant. FOSTER, J. :r'he plaintiff, on the 5th day of April, 1888, filed his action at law against the defendant municipality upon a judgment rendered on the 22d day of November, 1876, in favor of one A. A. Brock· way, in the district court of Labette county, state of Kansas, wherein
BROCKWAY V. TOWNSHIP OF OSWEGO.
,
613
the said A. A. Brockway recovered a judgment at law against the said defendant for the sum of $2,678.90, together with $6.30 costs; the plaintiff in this suit being the assignee of said A. A. Brockway. The plaintiff, in his petition, alleges that at or about the timeM the rendition of the judgment in favor· of the said A. A. Brockway there was formed a conspiracy by certain citizens of defendant township for the purpose of preventing and delaying the collection of any and all judgments that might be then existing against the township, or thereafter rendered against said township; and' that, in pursuance of this conspiracy, and. for the purpose of accomplishiilg the same, the citizens of said township, by variousdiwices, caused such a state of affairs to exist that there were no officers in said township upon whom service of process could be made from the rendition of said judgment in favor of said A. A. Brockway up to and about the time of the filing of the petition in this stlit. To this petition the said defendant filed a general denial, and pleads specially that the judgment sued upon became dormant on the 13th day of November, 1881; and that no proceedings have been taken to'revive the same; and that any cause of action thereon is long since barred by the statute of limitations of the state of Kansas. To this answer there was filed a general reply. A jury being waived in writing, the case was submitted to the court for trial. The evidence introduced substantially ,established the allegations of the plaintiff's petition as to the conspiraey. It is further admitted by the defendant as follows: That during the years 1878, 1879, 1880,1881,1882,1883,1884,1885, and 1886 a full board of officers of said township was elected, but none of said offi\:lers so elected ever qualified or entered upon their offices. ' On July 12, 1887" township officers were appointed, who qualified on that date; alldthese were all of the appointments made, except as above set forth, as sllown of record. That no officers were elected in said Oswego township, cept as above, until November, 18S7, when a full board was elected, and qualified on February 24, l88S. It appears that, on'the 22dday of 'November, 1876, thesaid A. A. Brockway recovered ajudgment in the state court for the sum of $2,678.90 and costs; that no execution or'1l'Utndamus proceeding was had upon said judgment; that on: the 15th day of June, 1882, a ,motion was filed to revive said judgment as dormant, but; as there were no officers of the township, no service was ever made upon any person of this motion. On the 22d day of June, 1882, Brockway's attorneys filed an affidavit for'service by publication of said notice of the above motion, and such notice was published for three consecutive weeks in the Parsons Sun. On the 13th day of November,'1882, a motion was filed to revive' the judgment upon the notice atterripted to be served by such publication notice, which motion was denied by the court on the day of November, 1882. The township appeared specially, and excepted to any order of revivor; ahd a case was made and taken to the supreme court, and on the 13th day of June, 1884; the supreme coort affirmed the decision of the trial court in refusing to revive said action upon no.tice by publication of said motion. 4 Pac. Rep. 79. At the February term, 1884, said application to revive said judgmentwasCOll-
issued ''In.dreturned not served, anl1sQ,P.lil, from 1885,,1$86, 1887; and on t}leJWthiday .of ;lilaid application !:\nd motion were disby :said: "Wd, on the 5th day of April, 1888, thili smtwas, institutel1to recpver upou said judgment· .,There is really, but. presented. Is the plaintiff barred by statllte of limitation? ,Section C.ode C.ivil Proc.,rea,ds as follows: ,JUf'execution shall sued outwlthJin five years from the da.te of any jQ4glllt>nt t1)at(, now is. Qr may hereafter \la.rendered III any court of record if sballhaw int;ervened bllt-ween the date oithe last exeqution issued Qnsu<:h judgmeptandthe tim.e oi,!,uingout another writ .of·execution thereon'.sbch, judgment shall becoml1 dormant. and shall cease't.o' operate as a lien on the estate of the jUdgment · . __ .' .' U'/ .' i _ "
j
is ,qrged by the Plaintiff that ppes not apply to judgments municipalities, beCl).use, l:Ioexecutioncan be issued on such jucigments, If is the case, against municipalities would never becomedormant.:: On. this question, in the of U. S. v. OffWega 7P. ,2$ Fed. E.ep. 55; Judge BREWElhof this c,ourt, eXprElssed a negstiv;e,opiniqn, apcl held th.at the liJ;nitation of fiveyeavs apply to such judgments,.and that a,'TfW,ndanJ/u8 ,was equivalent tOJan execution. With views of my BREWER; this may rest,. although much might,perhap!!, be saiel qn of the Amy v. City of (lalfn.a,7 Rep. 1&3. It must, however, logiQa11y follow tha.t, if judgments agaJl1st municipalities.andagainst individuals alike come under rule of this stlJ,tute, a issue a mandamus for five years has the Ellllne el;fectasa failure,. to issue an executionji. the judgment simply becomes dormant., It must further follow that the jU<Jgment creditQ:1'. in case, has a like period oftjme and like process in and. by wh,ich l\e:may revive his judgment. Section 440 of the Cope of (;ivilPrQcedure.i','eil-ds as follQws: "If a, ,judgment become dorxnant, it may be revived in the same, manner as is prescribed for reviving actions before judgmel1t." It has been held by the supreme court that .,8 judgment creditor bas.oI\e year aftEl},' his judgment has become dar;want to re13iveit, andt4at revivorca,n be made on notice and motion, as contempla.ted by section 428 ofth a Code, or by an action at law. llaM!' v. Hummer,31 Kan. 325j Angell v, Partin,24 Kan.334j Grublev. 27, Kan. ,1,>35 j Kotlyrnan, v. J{an. 5. So the judgment cnjditor in this, having failed to take out a mandamus Jor five years, !lad one year thereafter in which ,to his judgment, as. before stated. In. order s\l.ch r(:lvivor b.y; either mode, it was absolutely I,ltlcessary that;lile should 6nd the judgJUellt debtor, in ,order to serve noor on him. Section 42$, CodeCivil,P:roc. Suppose the peen ag,ainst an and he ha.d left the state" or c::<mcealed hiinE;lelf, ora.b.$G9nded. Co\:1lli it be claimed the statute would rU;JIAuril:lg concealment, etc.? I should aay.it could not. QitbeCode ,{ends as. follows: ,<4 If. when a cause of lI.ctJion accrUes against a person. he be of the state. or himself;theperiodlim,ited forth.e commence-
e.,
CITY OF PHILADELPHIA t1. WESTERN UNION TEL. CO.
615
ment .of actionshn.11 not begin to run nntil he comes' into the state, or while he is so absconded or concealed; and if. after the cause of action accrues, he depart from the state, or abscond or conceal himself, the time of bis absence or concealment shall not computed as any part of the period witbin which the action must be It is true, the township of Oswego had not absconded, nQr been absent.
or concealed; but all of its officers on whom any notice or process could be served were absent, absconded, or concealed during the whole of said period of time, and that with the express purpose of baffling and defeating the creditor in his attempts to revive his judgment. If it had been an ordinary case of vacancy, in office, ,it might be urged that the creditor should have applied to the boarc;l of county commissioners to have the, vacancies filled, under cha:pterllO, Gen. St. § 12; but in this case would have been an idle and useless thing to do. The people of the township were united in their determination to the judgIl1 ents against it; 8.nd, even if thebOll;l"dof county commissioners should havl:\ named persons to fill the offices in said township, they could not have compelled them to qualify or serve. It seems to be a case somewhat ,analogous to a judgment debtor who conceals himself or absconds to prevent service of process; and I have, no hesitation in saying t4e tion of the people of the township, by keeping the offices cant and thus preventing service,of process, did not bar the judgment creditor from his action after tl:le vacancies were filled. I have been unable to find a case exactly in point, .but there are many cases holding that the existence of war suspends the statute of limitation 3R between citizensof,the contEmding states. Hanger 6 532j Br.aun v. Sauerwein, 10 Wall: 222; Devereaux v.BrmJ.m8Vule, 29 Fed. Rep. 750j Levy v. Stewart, 11 Wall. 244. My attention has been especially called to the case of Amy v. Watertown, (No.2,) 130 U. S. 320, Sup. Ct. Rep. 537.. That case, so far as the by the defeIldant is concerned, for the purpose of defeating service of process, is quite similar W the case at bar. But l so far diligence by the creditor to save his rights concerned, cases afe not parallel, nor does statute of 'contain the provisions of the Kansas pending the operation of the limitations while the debtor is absconded or concealed. Judgment must go fo'r, the plaintiff.
CITY L
OF PHILADELPHIA 11. WESo:ryJRN UNION
TEL. ' Co.
(Owcuft Cou'l't, E. D. Penns1i1JlJanUJ..: Ootobel'
28; 1889.)
Jr[UNIOJP.u. CORPORATIONS-TAXATION OF TELEGRA.PJI CoMPA:NY.
Clbmmeroe; . I.
The city of Philadelphia is not authorizell to tax a telegraph company its streets and could not, even if authoriZed, tax a company engaged in interState
'
B.un-LIOENBIllIl-:-UNREABONJ.BX,B. FEE.
1lcenS8 fees amounting, m
An ol'dinance
8 corporation ocoupying the streets ,of a muJiioipal1ty aU, to 11.6,000 pel' 'annum where the cost of supervising
. "j ,