Rahm v. Soper , 28 Kan. 529 ( 1882 )

The opinion of the court was delivered by

Horton, C. J.:

The judgment of T. J. Stout against Elizabeth H. Hook was rendered before a justice of the peace of Leavenworth county in 1878, and in the same year an abstract of that judgment was docketed in the district court of Leavenworth county, under §119 of the justices’ act. The garnishment proceedings against R. B. Soper were commenced on March 21, 1881, before the justice rendering the judgment, and long subsequent to the docketing of the abstract in the district court. It was held in Treptow v. Buse, 10 Kas. 170, that the filing of an abstract in the district court has the same force as the filing of the transcript of a judgment. (Comp. Laws of 1879, ch. 81, §119; id., ch. 80, §518.) The filing of an abstract of a judgment rendered before a justice of the peace obviously contemplates a transfer of the judgment from the justice’s court; and after the judgment is so transferred to the district court, it becomes subject to the same rules and vested with the same powers as though originally rendered in that court. (Treptow v. Buse, supra; Comp. Laws 1879, ch. 81, § 188.)

Section 138 of the justices’ act reads:

“It shall be the duty of the justice, if the case be not appealed, taken up on error, docketed in the district court, or bail has not been given for the stay of execution, at the expiration of ten days from the entry of the judgment, to issue execution without a demand and proceed to collect the judgment, unless otherwise directed by the judgment creditor.”

Within the express terms of this section, after a case has been docketed in the district court, it no longer becomes the duty of the justice to issue execution in the absence of a demand. As the docketing of the judgment in the district court transfers the judgment to that court, and as by such transfer it becomes subject to the same rules and vested with the same powers as though originally rendered in that court, the judgment creditor after such transfer must look to that court for the means of enforcing the collection of the judgment, and cannot demand execution under § 137 of the justices’ act. This certainly was the intention of the legislature, and this construction of the statute renders the provisions of the code and the. sections of the justices’ act concerning this subject-matter harmonious. If a different view were entertained, a plaintiff would have the privilege of process on the same judgment from two courts within the same county at the same time. If the judgment creditor is not deprived of the right to an execution before the justice after he has transferred his judgment to the district court by filing an abstract, the provisions relating to revivor in § 522 of the code are without much significance, as the plaintiff might keep alive his judgment before the justice and from time to time file new abstracts. As in our view, the justice after the filing of the abstract of the judgment in the district count had not jurisdiction to issue process in the case, all of the garnishment proceedings after the transfer of the judgment to the district court must be regarded as nullities.

Counsel for defendant refers to § 154, ch. 42, Laws of 1858, and to the substitute therefor of §137 of the justices’ act, and argues that as the reenacted section leaves out the excepted cases when an execution could not issue, the justice must, under §137, issue an execution at any time, upon demand of the judgment creditor, within five years. This argument is not altogether sound. Clearly, the legislature never intended by the substitution of §137 for §154 to compel the justice to issue execution upon a judgment after an appeal had been perfected or a valid stay taken. Yet, if the argument of counsel be followed out, this would be the logical conclusion. Furthermore, the legislature, in view of the provisions of the code making a judgment after it has been transferred subject to the same rules as though originally rendered in the district court, may have deemed it unnecessary, in readopting §137, to embrace in it all of the provisions of §154. It must be conceded that nothing was lost or changed by omitting therefrom the excepted cases of appeal or stay, and in our opinion no change occurred in omitting the provision concerning the docketing of the cases. All of the clauses omitted were supererogatory.

The judgment of the district court must be reversed, and the case'remanded with direction to the court below to enter judgment upon the agreed statement of facts for plaintiff in error.

All the Justices concurring.