dissenting:
In December, 1S76, the plaintiff, Solen, in an action for damages for injuries to his person, obtained a verdict against the defendant for fifteen thousand dollars.
Thereupon the clerk of the court entered and recorded a judgment in his favor, in precise accordance with the form of a judgment which had been prepared and furnished by one of his attorneys. The judgment so entered was for fifteen thousand dollars, and the costs of the action taxed at one hundred and eighty-one dollars. As to interest it was silent.
The defendant having appealed from that judgment, it was finally affirmed by this court (13 Nev. 106), and the remittitur filed in the district court June 22, 1878. On the twenty-ninth of June, and before the bringing of the present suit, the defendant paid to the clerk of the district court, for the use of plaintiffs, the full amount of the original judgment, with the accruing costs. This was tendered as full payment and satisfaction of the judgment, but the plaintiffs, claiming that they were entitled to interest, declined the tender, and thereupon commenced this action to recover the amount of the original judgment, together with legal interest thereon from the date of its rendition. The co-plaintiffs of Solen are assignees of a portion of the judgment upon which the suit is founded.
The cause -was tried in the district court, without a jury, and judgment rendered in favor of the defendant, upon the ground that the original judgment in favor of Solen, failing to specify interest, was not entitled to draw interest, and was fully paid, satisfied, and discharged, by the payment to the clerk, on the twenty-ninth of June, 1878.
*318From this judgment, and from an order overruling their motion for a new trial, the plaintiffs appeal.
The questions which have been principally discussed by counsel, and which are of vital importance to the decisions of the cause, are tbe following:
1. Is interest allowable upon the amount of the judgment recovered in an action ex delicto ?
2. Can an action upon a domestic judgment be maintained in this state, when there is no necessity for bringing the suit, except such as has been occasioned by the fault of the judgment creditor?
The first of these questions is determined by the proper construction of sections 32 and 33 of the Compiled Laws, which read as follows:
See. 32. “When there is no express contract in writing fixing a different rate of interest, interest shall be allowed at the rate of two per cent, per annum, for all moneys after they become due on any bond, bill, or promissory note, or other instrument of writing, on any judgment recovered before any court of this territory, for money lent, for money due on the settlement of accounts from the day on which the balance is ascertained, and for money received to the use of another.”
Sec. 33. “ Parties may agree in waiting for the payment of any rate of interest whatever, on money due, or to become due, on any contract. Any judgment rendered on ■such contract, shall conform thereto, and shall bear the interest agreed upon by the parties, and which shall be specified in the judgment; provided, only the amount of the original claim or demand shall draw’ interest after judgment.”
Counsel for respondent contends that the word's, “-on any judgment recorded in any court in this territory” (sec. 32), are qualified and restrained by the language which follows, and that, with the exception of the cases provided for in section 33, no judgment will bear interest, unless it is recovered “ for money lent, money due on the settlement of accounts,” or “for money.received for the use of another.” He claims this construction not only upon the ground that *319such is the natural import of the language of the statute, but because it had been so construed by the supreme court of California long before its adoption in this state.
The California ease, which is relied upon in support of the latter proposition, is Osborn v. Hendrickson, 8 Cal. 31. But, as was pointed out in the later case of Burke v. Garuthers 31 Id. 471, the head note to Osborn v. Hendrickson is not a correct syllabus of the decision. It was not decided that the judgment therein bore no interest after rendition, but merely that the demand in suit bore no interest before judgment. The question here involved, does not seem to have arisen in California before our adoption of her statute; but since that time it has frequently been decided by the supreme court of that state, that all judgments — in actions ex delicto as well as in actions ex contractu — draw legal interest, unless a different rate is therein specified. (See 31 Cal. 466; 34 Id. 246; 38 Id. 548; 44 Id. 366; 45 Id. 193; 46 Id. 204, 320.)
According to these decisions, the words “ on any judgment,” etc., are to be read in connection with the language which precedes them — making this the.sense of that portion of the section:
“Interest shall be allowed at the rate of ten per cent, per annum for all moneys after they become due on any bond,” etc. (for all moneys after they become due), “ on any judgment,” etc.
Independent of all considerations of policy, justice, and consistency, this reading is, wo think, quite as natural as that contended for by respondent. But it is strongly confirmed by such considerations. There is no sort of reason why a judgment — which in every instance is regarded as a contract of the very highest character, imposing an obligation, and importing a promise to pay a liquidated sum— should not draw interest at the rate allowed upon other liquidated demands. If, therefore, we were without precedent to guide us, we should be inclined to construe this statute as it has been construed in California, and consequently, we can have no hesitation in following the repeated decisions of the supreme court of that state.
*320Having thus reached the conclusion that Solen was entitled to have a judgment hearing interest at the legal rate entered in the former action, the next question is: What consequences follow from the act of his attorney in having a judgment entered which was silent as to interest?
One consequence, undoubtedly, was, that he could not issue execution for interest. Such was the decision of this court in Hastings v. Johnson, 1 Nev. 613, and that decision, settling a question of practice, we have felt constrained to follow, without reference to its correctness as an original proposition. (14 Nev. 405.)
It must be regarded, therefore, as the settled doctrine of this court, that no execution can issue for interest upon a judgment which fails to specify upon what portion thereof and at what rate interest is collectible.
This doctrine, however, and the ground upon which it rests — the old familiar maxim, that the execution must follow the judgment — are entirely insufficient to sustain the inference that judgments of the character described do not bear interest.
The right to collect interest by execution is of recent statutory origin. Before the enactment of statutes expressly conferring the right, it was always held that interest could not be levied by execution, because, and only because, the execution must follow the judgment. At the same time the recovery of interest in actions upon judgments was almost universally allowed, and, indeed, the recovery of interest seems to have been one of the principal reasons for bringing suits upon judgments, in cases where the time for issuing execution had not passed.
If, therefore, it bo true, as counsel for appellants contends, that a judgment creditor has an absolute right to sue his judgment over again at his own pleasure, there is no warrant for the conclusion of the district court, that tbe original judgment in favor of “Solen against the defendant drew no interest, for that the same was not specified therein, and for that the attorneys of said Solen rvaived the same by the form of judgment by them prepared.”
There is no pretense that there was any actual intention *321upon the part of Solen or his attorneys to waive the right to collect interest on the amount of his original judgment. The conclusion that there was á waiver rests solely upon the argument that every man is presumed to intend the necessary consequences of his voluntary acts, and that the necessary consequence of entering judgment without specifying interest therein, is to deprive the judgment creditor of the only means of collecting it — i. e., by execution on the judgment. If these premises were admitted, the conclusion would undoubtedly follow, that Solen waived his right to collect interest. But they are not admitted. On the contrary, the appellants insist that the right to sue on a judgment is a remedy always concurrent with the right to issue execution thereon, and that it may be resorted to at the mere pleasure of the judgment creditor, as often as he chooses, and without the allegation or proof of any circumstance tending to show that an execution would be ineffective. In opposition to this view, and in support of the conclusions of the district court, counsel for respondent contends that the right to sue upon a judgment, if it exists at all under our code of practice, is confined to those cases in which a necessity therefor has arisen without the fault of the judgment creditor.
It is assumed, in support of this. proposition, that at common law the right to sue upon a judgment was a qualified right, not exercisable .at the option of the creditor, but only in those cases in which ordinary process for the enforcement of the judgment had ceased to be available or was insufficient to give it full effect. And it is argued that, although a suit was formerly maintainable upon a judgment for the purpose of collecting interest, though the time for issuing execution had not expired, the statute of this state, in giving the power to collect interest by execution, has done away with the necessity, and consequently with the right, of suing for that purpose; and that the design of the statute,' to supersede the remedy by suit, can not be frustrated by the act of the party in entering his judgment so defectively that an execution for interest can not issue thereon.
*322Whatever force there may be in this argument, manifestly depends upon the correctness of the assumption upon which it is founded.
If it is not correct, and if, on the contrary, an action on a judgment was maintainable at common law as a matter of course, then there would seem to be no reason why these plaintiffs should not recover according to the prayer of their complaint.
This, then, is the question to be decided: Did an action on a judgment lie as a matter of course at common law?
There is some conflict in the decisions of the courts of the United States on this point, but the decided weight of judicial opinion is in the affirmative.
Mr. Freeman, in his work on judgments .(sec. 432), has referred to most of the cases in which it has been directly adjudicated, and they unquestionably sustain his statement, that “at common law a party has a right of action upon his judgment as soon as it is recovered. This right is not barred nor suspended by the issuing of an execution; nor because, from having the right to take out execution, the plaintiffs’ action seems to be unnecessary.”
In addition to the cases cited by Mr. Freeman, I call attention to the following:
In Headley v. Robey, 6 Ohio, 524, the court say: “ It is one of the first principles we learn in relation to the action of debt, that it may be sustained on a record of judgment, and W'hen the judgment is obtained, and the record made up, the right of action is complete. * * * The right to issue-execution on a judgment is a remedy cumulatory only; and I know of no law which would deny to the party a right of action on the judgment, if he chose that remedy, because he could issue execution.” To the same effect are Davidson v. Nebaker, 21 Ind. 334, and Greathouse v. Smith, 3 Scam. 541. (See also Scofield v. White, 29 Vermont, 330; Tarbell v. Downer, Id. 339; Clark v. Goodwin, 14 Mass. 237; Thomson v. Lee County, 22 Iowa, 210; Klock v. Robinson, 22 Wend. 157; O'Neal v. Kittredge, 3 Allen, 470; Linton v. Hurley, 114 Mass. 76; Wilson v. Hatfield, 121 Id. 551.)
In Connecticut, the point had been decided both ways in *323the superior court, and when, in 1822, it came before the supreme court of. that state, it underwent a very thorough discussion. The whole court agreed that at common law an unqualified right to sue on a judgment followed necessarily from the implied promise of the debtor to pay it, and it was held that the common law rule was in force in that state. On the latter point, one justice dissented, but this circumstance only gives additional weight to the unanimous opinion of the court on the principal question. (See Denison v. Williams, 4 Conn. 402.)
In opposition to this strong current of authority, I find a cliclum of the supreme court of Alabama (White v. Hadnot, 1 Porter, 419), which was in effect repudiated by the decision in a later case (Kingsland v. Forrest, 18 Ala. 519), a decision of the supreme court of South Carolina (Lee v. Giles, 1 Bailey, 449), in which an attempt was made to show that, at common law, suit upon a judgment was only allowed after the expiration of the year and a day within which execution could be issued, and a decision of the supreme court of Oregon (Pitzer v. Russell, 4 Oregon, 124), in which an opinion, mistakenly attributed to Baron Comyn, is .made the ground of an inference, that the action at common law was allowed only as a means of collecting interest. A reference to the English cases, and text-writers cited in these opinions, will, I think, show very clearly that they give no countenance to the doctrine, that the right to sue on a judgment was subject to any sort of condition or qualification. The right to sue, and the necessity for suing, are two very distinct things, and the absence of the latter by no means implies the absence of the former. In respect to judgments, the theory of the law was, that they implied a promise, on the part of the debtor, to pay, and from that theory the right of action necessarily followed. But the right was not often exercised, except when other means proved ineffective.
By reference to the cases above cited, however, it will appear that in this country actions have been frequently brought on judgments where there was no necessity for bringing them, and undoubtedly the same thing must have *324happened frequently in England. Still, no English case has been found in which the right to maintain the action was denied on any such ground, and the English text-writers (Selwyn, Tidd, Chitty) all say Avithout qualification that the action of debt lies upon a judgment. To this it might be answered, that in England the necessity always existed in order to collect interest on the judgment; and the answer would be sufficient if it were not for the fact that actions on judgments were frequently maintained in England in cases in which no interest was recoverable. (See cases cited by Judge Cowen in Klock v. Robinson, 22 Wend. 162.)
Upon the.great weight of authority, I think, it must be held that the right to sue upon a judgment was absolute at common law; and that the common law rule prevails in this state I do not understand counsel to make any serious question. The proposition is conceded in Pitzer v. Russel, supra, that the creation of a new remedy for a private grievance (as the right to issue execution for interest) does not by implication abolish an existing right of action (p. 126), and it is not pretended that the common law right, whatever it Avas, has been expressly legislated upon in this state.
That the right to sue, instead of issuing execution on a judgment, is capable of being abused for purposes of oppression, is certainly true, and so is it true of other kinds of actions, and notably so of attachments, but the remedy for such abuses lies with the legislature, and not Avith the courts.
Eor these reasons, I think the judgment and order appealed from should be reversed, and the cause remanded.