(dissenting) : We dissent from the judgment of the majority in this case and from the reasons given in the foregoing opinion. We are free to confess that the judgment pronounced is in extension of a long course of decisions by this court, but we are constrained to say that in our view it is wrong — radically wrong. These decisions are bottomed upon a misconception of the word “manner” used in the civil code, section 440 (Gen. Stat. 1901, §4890). That section reads : “Ifa judgment become dormant, it may be revived in the same manner as is prescribed for reviving actions before judgment.” All the cases referred to in the majority opinion were decided on the assumption that the word “manner” in the above section included the element of time. In the recent case of Reaves v. Long, 63 Kan. 700, 66 Pac. 1070, it was expressly so held. Two of us who unite in this dissent *826concurred in that decision. We are free to say that reflection on the case since then has convinced us we were in error. Manner refers to method and not to limitation of time. Its usual significance in all statutes is merely that of mode. This was distinctly so held in a case raising the precise question here' involved under statutes verbatim with ours. (Bankers’ Life Ins. Co. v. Robbins, 59 Neb. 170, 80 N. W. 484.)
Another error into which this court has fallen is in a misconception of the nature of dormancy as related to judgments. We have been viewing it as a condition of death, not of sleep or suspended animation. This was gross error. Dormant is defined :
“Being in a state of or resembling sleep; torpid; especially hibernating in a state of lethargy. Not aroused to action, though capable of it; not used, asserted, or enforced.” (Stand. Diet.)
The very statute referred to by the majority applies the above definition. That statute reads :
‘ ‘ If execution shall not be sued out within five years from the date of any judgment . . . such judgment shall become dormant, and shall cease to operate as a lien on the estate of the judgment debtor.” (Civil Code, §445 ; Gen. Stat. 1901, §4895.)
The statute therefore declares the effect of dormancy to be merely cessation of lien. This is but a legislative recognition of the common-law rule.
“At common law, and by the overwhelming weight of authority in this country, the right to maintain an action upon a domestic judgment is not at all dependent upon the right to issue an execution thereon.” (11 Encyc. PI. & Pr. 1089.)
“At the common law, an action of debt will lie on a judgment, as soon as it is recovered, and without any regard to the plaintiff’s right to take out execution : for the remedy by execution is cumulative *827merely, and the statutes giving this remedy do not impair the common-law right of action on the judgment as a debt of record.” (Black, Judg. § 958.)
At common law, dormancy was not the death of the judgment; it merely suspended the enforcement of the judgment. At common law, a dormant judgment could be revived by a new action or by scire facias; but meanwhile it retained its existence as an evidence of debt. This was clearly shown in Lockwood v. Barefield, 7 Ga. 393. In that case it was held that an action of debt would lie on a dormant domestic judgment. Now, it has been often held in this state that actions would lie on domestic judgments. Hence, if the court is in error in enlarging the word “manner,” used in section 440 of the civil code (Gen. Stat. 1901, §4890), to include the element of time — to include the limitation of one year prescribed by section 434 of the civil code (Gen. Stat. 1901, §4884) for reviving actions — there is therefore no limitation applicable to suits on judgments except the one prescribed by the general code provisions. Those code provisions except from their terms the case of non-resident defendants, or defendants out of the state. This precise question was decided by the court of appeals of Kentucky. Certain sections of the statutes of that state, the same as ours in substance and import, were under consideration in a case of a character precisely like this one. The court said:
“It is contended, however, that as the second section of the latter act absolutely prohibits the issuing of an execution upon a judgment after fifteen years from the date of the last execution, the judgment against Davidson was barred long before this suit was commenced, and that, as the judgment was barred, no action can be maintained to enforce it. That statute did not provide that a judgment should be barred by *828the lapse of fifteen-years without an execution having issued thereon. It only provided that no execution should issue, and left any right of action the plaintiff may have had upon the judgment to be governed by the same rules applicable to other causes of action; and Simmons having had a cause of action on the judgment, the prosecution of which was obstructed by the departure of Davidson from the state, we are of the opinion that the statute is unavailing.” (Davidson etc. v. Simmons, 74 Ky. 330, 334.)
A similar holding, construing similar statutes, was made in Hicks v. Brown, 38 Ark. 469. See, also, to the same effect, Bankers’ Life Ins. Co. v. Robbins, supra ; Tyler’s Ex’rs v. Winslow, 15 Ohio St. 364.
The judgment should be affirmed and not reversed.