Erickson v. Johnson ( 1876 )

Berry, J.

On October 19, 1859, judgment was rendered and docketed in the district court for Hennepin county, in favor of Dorland B. Dorman and against William Hanson. Dorman having died November 23, 1863, Merriman was appointed his executor, and on October 15, 1864, caused execution to be issued and delivered to the sheriff. The sherifi made a return of “ no property found” upon the execution, and on November 17, 1864, the execution, with the return thereon, was filed in the office of the clerk of the court, the return bearing no date.

Laws 1862, ch. 27, enacts that “the party in whose favor judgment is given may, at any time within five years after the entry thereof, proceed to enforce the same as provided by statute; but when no execution shall have been issued and levied, or returned ‘no property found,’ within five years from the time of the entry of judgment, the lien of the judgment shall be determined, and the property of the judgment debtor discharged therefrom.” The defendant claims that, under this statute, the lien of the judgment upon certain lands in controversy expired October 19, 1864, five years after the judgment was rendered and docketed. The plaintiffs claim that, by Dorman’s death, the statutory period of five years was extended long enough at least to make the return on November 17,' 1864, sufficient to preserve the lien.

The statute which we have quoted, if not a statute of limitations, in the strict sense of a statute limiting the commencement of actions, is so far analogous that its construction and application should be governed by the same rules. As to statutes of limitations, the settled rule is that no exception from their operation can be claimed ‘ * unless expressly mentioned.” This is upon the principle that “ general words of a statute must receive a general construction, and, unless there can be found in the statute itself some ground for restraining it, it cannot be restrained by arbitrary addition or retrenchment,” or by “judicial construction.” Angell on Lims. §§ 56, 195, 476, 485, 488; McIver v. Ragan, 2 Wheaton, 25 ; Hall v. Bumstead, 20 Pick. 2 ; Favorite v. Booher’s Adm’r, 17 Ohio St. 548 ; Warfield v. Fox, 53 Penn. St. 382; Wade v. Caspari, 24 La. An. 211; Davidson v. Shearon, Sup. Ct. Tenn. (Chicago Legal News, Nov. 20, 1875.) Prom the application of this rule to the statute under consideration it follows that the lien in question expired October 19, 1864.

The only other point necessary to be considered arises upon the following facts: On August 22, 1862, judgment was recovered and docketed in the district court for Hennepin county in favor of Dennis Collins and against William Hanson aforesaid. Under the act of 1862, before quoted, the lien of this judgment would have continued until August 22,1867. The act of 1862 was repealed by Gen. St. ch. 122, which took effect July 31, 1866. At the time of this repeal the lien of the Collins judgment was in full force. By Gen. St. ch. 121, § 7, it is provided that “when a limitation or period of time prescribed, in any of the acts repealed, for acquiring a right, or barring a remedy, or any other purpose, has begun to run, and the same or a similar limitation is prescribed in the General Statutes, the time of limitation shall continue to run, and shall have like effect as if the whole period had begun and ended under the operation of the General Statutes.” Gen. St. ch. 66, § 254, provides that the lien of a judgment shall continue for ten years from the time of docketing’, and § 262 of the same chapter, that execution may be issued at any time within ten years after the entry of judgment.

The ten years’ limitation of the lien of a judgment provided in the General Statutes was “similar” to the five years’ limitation provided by the act of 1862 in a case where the lien had not been preserved by the levy or return of an execution. Gen. St. ch. 121, § 7, had, then, the effect, when taken in connection with Gen. St. ch. 66, § 254, to preserve the lien of the Collins judgment for a period of ten years from the rendition and docketing of the same — that is to say, until August 22, 1872 ; and by Gen. St. ch. 66, § 262, execution might be issued on the Collins judgment at any time during the existence of the lien — that is to say, within ten-years. The alias execution issued July 3, 1872, the levy ox the same upon the premises in dispute, and the sale of the premises, which was consummated by the execution of the proper statutory certificate of sale, on August 21, 1872, were, therefore, all in time. With regard to the first execution which was issued up*n the Collins judgment, on August 22, 1862, and which was on the same day returned-“unsatisfied in part,” it is unnecessary to consider whether the return is to be regarded as evidence of a levy or not; for if it was to be so regarded, then the lien of the Collins judgment would be preserved, and the sale upon the alias execution be valid, in accordance with Davidson v. Gaston, 16 Minn. 230, and Lamprey v. Davidson, Id. 480.

Judgment affirmed.