Baker v. Hummer , 31 Kan. 325 ( 1884 )

The opinion of the court was delivered by

Horton, C. J.:

March 25,1876, the plaintiff, Thomas R. Baker, recovered in the district court of Atchison county a judgment against the defendants, John P. Hummer and Matilda W. Hummer, for the sum of $956, and costs. April 23, 1876, an execution was issued on the judgment, and $435.50 collected thereon. In the fall of 1876, the defendants removed from the state of Kansas to the state of Illinois, and have been continuously absent from this state ever since. October 24, 1882, this action was commenced on the judgment rendered March 25,1876, to recover another judgment for the remainder remaining unpaid. March 16, 1883, the defendants acknowledged service of summons. August 7, 1883, a trial was had, and the court rendered judgment against the plaintiff for costs.

The single question is, Can this action be maintained ? The court decided not. This is the ruling complained of. At the time this action was commenced, the judgment of March 25,1876, could have been revived by motion and notice without the consent of the defendants, within the authority of Angell v. Martin, 24 Kas. 334.

The contention on the part of the defendants is, that no action will lie for the purpose of reviving a dormant judgment and having a second judgment rendered thereon, as the statute specifically provides that it shall be done by motion and notice. Sections 428 and 534 of the code are referred to, and the case of Gruble v. Wood, 27 Kas. 535, is cited as decisive as to what notice must be served. It was held in Burnesv. Simpson, 9 Kas. 658, that an action can be maintained on a domestic judgment in this state. The provision in the statute giving the right to revive a dormant judgment by motion and notice made within one year after it becomes dormant, is only cumulative or additional to the remedy of the common law. A judgment creditor can either sue on a dormant judgment within a year after it becomes dormant, or have the original judgment revived by motion and notice as prescribed by the code. (Burnes v. Simpson, supra; Kothman v. Skaggs, 29 Kas. 5. See also cases cited in briefs.)

The decision of Gruble v. Wood, supra, is not in conflict with this conclusion. In that case no action was brought upon the dormant judgment. The judgment creditor attempted, however, to revive the judgment under the provisions of the code, and instead of giving the statutory notice, he issued a summons. We held in that case that the order of revivor was wholly void, as the summons in no way complied with the statute. If an action had been brought for the purpose of reviving the dormant judgment in that case and a summons had issued, the judgment creditor might have recovered a valid judgment.

The judgment of the district court must be reversed, and the case remanded.

All the Justices concurring.