This is an appeal by plaintiff from a judgment in its favor in[1] the sum of $247.95, which was less than the demand in the complaint, and from which judgment defendant filed a cross-appeal. The action is to renew a former judgment for an alleged balance of principal and interest. The original judgment was entered February 14, 1928. This action was commenced July 8, 1938. Defendant pleaded that the cause of action was barred by sections 9027 and 9028, Revised Codes, limiting such an action to ten years. This was denied by the reply, but it did not plead any affirmative matter tolling the statute of limitations. Plaintiff's counsel contends, however, that the running of the statute was suspended because the original judgment was appealed first to this court, where it was affirmed July 12, 1928, and then to the Supreme Court of the United States, where it was affirmed February 18, 1929, and contends that we should take judicial notice of the fact of the two appeals, and of the fact that a supersedeas bond was filed on both appeals. *Page 142
Assuming that we may take judicial notice of these facts in the absence of a plea tolling the running of the statute, still we must conclude that under our statutes the action is barred. Sections 9027 and 9028 prescribe ten years as the limitation of time for the commencement of an action "upon a judgment or decree of any court of record of the United States, or of any state within the United States." And this limitation applies to the state in the same manner as to private parties. (Sec. 9043, Rev. Codes.) The statutes contain some exceptions to the running of the time, as where defendant is out of the state (sec. 9048), where the plaintiff is under certain disabilities (sec. 9049), and where the commencement of the action is stayed by injunction or court order (sec. 9055).
The supersedeas bond merely prohibited the issuance of an[2] execution on the judgment pending appeal. (Fredericks v.Clark, 3 Mont. 258.) The time that the appeal was pending, there being a supersedeas bond in effect, might have to be eliminated in computing the six-year period for levying execution under section 9416, Revised Codes. (Compare Ware v. Pleasant GroveTownship, 9 Kan. App. 700, 59 P. 1089.) We do not pass upon that point; but neither the appeal nor the supersedeas prohibited the bringing of an action to renew or revive the judgment. The[3] remedies of levying execution and bringing an action to renew the judgment are cumulative. (Lindsay Great Falls Co. v.McKinney Motor Co., 79 Mont. 136, 255 P. 25; Haupt v. Burton,21 Mont. 572, 55 P. 110, 69 Am. St. Rep. 698.) The right to bring suit on the judgment is not dependent upon the right to levy execution. In fact, execution must be issued within six years after the entry of the judgment (sec. 9416), except by leave of court (sec. 9421), whereas action for revival or renewal may be brought as a matter of right within ten years. (CompareCitizens' Nat. Bank v. Lucas, 26 Wash. 417, 67 P. 252, 90 Am. St. Rep. 748, 56 L.R.A. 812.)
But counsel for the state contend that had such an action been[4] brought while the appeal was pending, the complaint would have been subject to demurrer on the ground that there was another action pending for the same cause, under section *Page 143 9131, Revised Codes, particularly when read in conjunction with section 9821, reading: "An action is deemed to be pending from the time of its commencement until its final determination upon appeal, or until the time for appeal has passed, unless the judgment is sooner satisfied." The answer to this contention is that an action to renew a judgment is not for the same cause as the principal proceeding in which the judgment was obtained. (34 C.J. 1083, 1084, note 38.) In other words, in the action to renew the judgment the facts involved in the original proceeding are not open to controversy. The original cause of action becomes merged in the judgment, and in the action to renew or revive the judgment the issues are narrowed to the fact of the entry of the original judgment, and do not embrace the facts upon which the judgment was entered.
A case involving some of the legal principles applicable here is that of Toombs v. Hornbuckle, 3 Mont. 193. By a judgment entered April 21, 1870, Toombs was declared entitled to the use of certain waters. The defendant Hornbuckle appealed to this court and put up a stay bond. This court affirmed the judgment on January 16, 1871. Hornbuckle appealed to the United States Supreme Court and executed another stay bond. That court also affirmed the judgment (Hornbuckle v. Toombs, 18 Wall. 648,21 L. Ed. 966), the remittitur going to the trial court on January 8, 1875. Toombs then brought action on July 16, 1875, against Hornbuckle for wrongful diversion of water in the years 1870, 1871, 1872, 1873 and 1874. The statute of limitations for such an action was three years. He contended that he could not bring the action while the appeals were pending. This court held otherwise. The basis of the decision was that the statute did not in express terms create an exception and, there being none, the court would not create one. The court said: "There is no order of court, or provision of law, which prohibits the respondent from bringing an action to recover the damages for the wrongful diversion of the water at the times when his right so to do accrued. If there had been such an order, or statutory prohibition, the time during which the disability existed would not prevent the running of the Statute of *Page 144 Limitations, unless the legislative assembly excepted the same in express terms."
No doubt if an action is brought to renew a judgment while an appeal from the judgment is pending, the matter could be set up by a plea in suspension or abatement. This would not defeat the action but merely suspend proceedings until the disposition of the appeal. (49 C.J. 232; State ex rel. Spitzer v. Beveridge,109 Or. 69, 218 P. 1112.) As was said in Lindsay Great FallsCo. v. McKinney Motor Co., supra: "Nor does there appear to be any restriction upon the judgment creditor's right to commence action within the period limited by the statute, 10 years." That an appeal does not prevent an action on the judgment seems clear. (Nill v. Comparet, 16 Ind. 107, 79 Am. Dec. 411.) The courts are divided upon the question whether the pendency of an appeal, or the right to appeal, enlarges the time for commencing an action to renew a judgment.
In California it has been held that a judgment is not final until determination of the appeal, or, if no appeal be taken, until the time to appeal has expired, and that the statute does not commence to run until the appeal, if taken, is determined, or, if no appeal be taken, until expiration of the time allowed therefor. (Feeney v. Hinckley, 134 Cal. 467, 66 P. 580, 86 Am. St. Rep. 290; Willard v. Dobbins, 191 Cal. 287,216 P. 1008.) Utah takes the contrary view. (Sweetser v. Fox,43 Utah, 40, 134 P. 599, Ann. Cas. 1916C, 620, 47 L.R.A. (n.s.) 145.) The general rule is that the statute of limitations begins to run against an action on a judgment from the date of its rendition and entry. Cases supporting this rule are listed in the note in Ann. Cas. 1916C, 625 et seq.
In Haupt v. Burton, supra, while the point we are considering was not directly involved, this court, at a time when the statute of limitations on a judgment was six years, said: "The life of a judgment under section 41 of the Code of Civil Procedure (Comp. St. 1887) was six years. It was accordingly necessary for plaintiffs to bring their suit within that time after date of the judgment sought to be revived." That is what our statute contemplates. Section 9028 simply limits to ten *Page 145 years an action on a judgment. The statute does not even say a "final judgment." Certainly a judgment appealed from is still a judgment and remains one until reversed or set aside on appeal.
Under our statute there is no exception that extends the time[5] for bringing an action on a judgment so as to permit exclusion of the time when appeals were pending or when a supersedeas bond was in effect. If the legislature so intended it would have so provided in section 9055. That section reads: "When the commencement of an action is stayed by injunction, or other order of the court or judge, or statutory prohibition, the time of the continuance of the injunction or prohibition is not part of the time limited for the commencement of the action." Here the supersedeas did not prevent the commencement of an action.
While there are cases holding that a stay of proceedings suspends the running of the statute, we are not impressed with their reasoning under statutes such as ours.
More than ten years having elapsed from the entry of the judgment until the commencement of this action, the plea of the bar of the statute was good.
The judgment is reversed.
MR. CHIEF JUSTICE JOHNSON and ASSOCIATE JUSTICES MORRIS and ERICKSON concur.