Dewey v. Latson , 6 Cal. 130 ( 1856 )

The opinion of the Court was delivered by Mr. Chief Justice Murray.

Mr. Justice Terry concurred.

Section 204 of the Practice Act provides, that immediately after filing the judgment roll, the clerk shall make the proper entries of the judgment, and from the time it is docketed it shall be a lien for two years.

In this case, the plaintiff appealed upon the rendition of the judgment in the Court below, and the single question is presented, whether, in such cases, the statute commences running from the docketing of the judgment in the Court below, or from the date of the remittitur from this Court.

The first reading of the Act would seem to be conclusive in favor of the appellant, but when we come to examine the legal solecism of allowing a party, by his own motion, thus to defeat the remedy which the law has given the creditor, and' to destroy the security furnished, which must inevitably result, if the construction contended for be sustained, we are necessarily put upon inquiry as to the intention of the Legislature and the possibility of escape from any such absurd consequences.

The obvious intention was to charge the estate of the judgment debtor, and to give the creditor two years to make his money. The statute intended that this time should run from date of the judgment, or period at which the plaintiff was in a situation to take out execution, and pursue his remedy to final satisfaction. By the defendant’s own act, the force of that judgment has been suspended, and the lien, which is merely an incident, must share a like fate. It would be absurd to say that a lien attached upon a judgment, and expired by its own limitation, while the judgment was still m fieri, and could not be prosecuted to full fruition.

The defendant would thus be able to abridge, if not destroy, the lien, and in all eases where a period of more than two years intervened between the date of the judgment in the Court below and the final judgment in this Court, to substitute personal for that security which the law gives the successful party.

It was never intended that a party, by prosecuting a frivolous appeal, should thus be allowed to take advantage of his own wrong.

Judgment affirmed.