Weiser v. McDowell

Given, J.

I. Appellee contends that “the record' discloses no judgment or order of the lower court fr!om which an appeal will lie.” The record discloses that plaintiff’s demurrer to defendant’s answer was overruled, and that plaintiff excepted, and elected to stand on her demurrer. Section 3164 of th/e Code provide® that an appeal may he taken from an order “when it sustains or overrules a demurrer.” It ads© provides that an appeal may be taken from “an intermediate order involving the merits, and materially affects the final decision.” The matter demurred to clearly involves the merits, and materially affects the final decision. The case is appealable under either of these provision® of the Code. See Cowen v. Boone, 48 Iowa, 350.

II. Code, section 2529, provides as follows: “The following actions may be brought within the times herein limited, respectively, after their causes accrue, and not afterwards, except when otherwise specially, declared: * * * (6) Those founded on a judgment of a court of record, whether of this or of any other of the United States, or„ of the Federal Courts of the United States, within twenty years.” It was uniformly, held, under this statute, that a right to maintain an action upon a judgment of a court of record existed from the time of its rendition, and was barred after the lapse of twenty years. In Simpson v. Cochran, 23 Iowa, 81, it was held that an action might be maintained and recovery had by the judgment creditors, “although he *775may at the time of bringing suit be entitled to an execution on bis judgment; that Ms right to recover is clear, and the court has no power to prevent him.” It is said “that defendants have a clear escape from what is apparently, and probably in some cases would be, vexatious and oppressive litigation, by discharging 1 the debt, and thus ending the controversy.” The following was enacted in the Code of 1873, and remains in force: “Sec. 2521. No action shall be brought upon any judgment against a defendant therein, rendered in any court of record in tMs- state, within fifteen years after the rendition thereof, without leave of the court for good cause shown, and on notice to the adverse party, nor on a judgment of a justice of the peace of this state within eight years after thte same is rendered, except in cases where the docket of the justice, or record of such judgment, is, or shall be lost or destroyed.” Both parties allege that the record of this judgment was never lost or destroyed, and that no cause existed for bringing 'an action on said judgment within the fifteen years following its rendition. It is clear, therefore, that this action could not have been maintained, after the taking effect of said section 2521, at any time prior to November 8, 1886. The contention is whether the bar provided in said section 2529 commenced to run following the rendition of the judgment, or at the time this action 2 could have been brought. The limitation of actions provided in section 2529 is “after their canses accrue.” Appellee contends that the terms “causes of action” and “canses of action accrue” cannot be applied to a judgment, that the cause of action has been merged in the judgment, and that an action on a judgment is simply a method of reviving the same. In Simpson v. Cochran, supra, this court said “that a judgment, whether domestic or of another *776state, gives to the party in whose favor rendered, a complete right of action; that it is a contract of the highest character, and he may declare upon it and recover as upon any other contract.” The limitations provided in said section 2529 are made expressly applicable to actions founded on judgments, and, except when otherwise specially declared, must he brought within twenty years “after their causes accrue.” If appellee contention is true, section 2529 has no application to actions founded on judgments,; and, if this he so, then there is no limitation to such actions. Surely, such is not the law. This is not an action to revive a judgment, but upon a “contract of the highest character,” and upon which recovery may be had “as upon any other contract.” In Meek v. Meek, 45 Iowa, 294, the question was whether the bar commenced to run against an action founded on a foreign judgment that h'ad been revived by scire facias twenty years from the date of the revival, or from the original rendition. The court says “that the final judgment directed by the statute to be entered therein is not a new judgment, but the revivor of the old one.” It is further said: “The revivor of a judgment by scire facias is, then, but a proceeding to enforce it, — to authorize the issuing of process of execution thereon. No new judgment is entered.” It was held in that case that the period of limitation began at the date of the original judgment. It will be observed, however, that that action was upon a foreign judgment, to which said section 2521 does mot apply, and that the right to revive by scire facias did not prevent maintaining an action on the judgment at any time within the limit allowed. It is contended that a cause of action may accrue and exist prior to the time when an action may be commenced thereon. It is the opinion of the majority that the right to commence an action exists the moment the cause accrues, and *777that tbe cause cannot be said to have accrued until tibe right to bring an action upon it exists. Whether these contentions are correct or not we meed' not determine, for section 2541 of tbe Code furnishes a complete 3 answer to tbe question under consideration. It is as follows: “When tbe commencement of an action shall be stayed by injunction or statutory prohibition, tbe time of tbe continuance of such injunction or prohibition shall not be part of th'e time limited for the commencement of this action.” The commencement of this action was unquestionably stayed and prohibited by said section 2521. There being no “leave of court for good cause shown,” and m> loss or destruction of tbe record, the statutory stay and prohibition was for fifteen years following the rendition of the judgment, and this time the statute says “shall not be part of the time limited for tbe commencement of the action.” The tíme limited in such actions is twenty years “after their causes accrue.” The statutory stay and prohibition is fifteen years, and this time “shall mot be part of the time limited for the commencement of the action.” Our conclusion is that plaintiff’s cause of action is not barreld until twenty years from the time at Which the action could have been commenced, and that the demurrer should have been sustained. — Reversed.