Berkson Bros. v. Cox , 73 Miss. 339 ( 1895 )

Woods, J.,

delivered the opinion of the court.

The judgment of 1887 was clearly barred. Buckner v. Pipes, 56 Miss., 366; Stith v. Parham, 57 Miss., 289; Hall v. Green, 60 Miss., 47.

Counsel is in error in supposing that Hall v. Green is not in perfect harmony with the two former cases. The error is not unnatural, however, regard being paid only to the collocation of the sentence quoted from that opinion by counsel to the effect that “the judgment was valueless except as affording the basis for the issuance of executions or the bringing of a new suit. ’ ’ The remark was made in an inappropriate connection. Evidently the meaning is that the judgment in a federal court, unenrolled in the proper county, created no lien on the debtor’s property in such county, and was valueless except for the purposes indicated in that opinion.

The demurrer to the second replication, in which an acknowledgment, in writing, within the period of limitation of seven years, was sought to be set up in answer to defendant’s plea of the bar of the statute, was also properly sustained. An action on a judgment is not embraced in the terms of § 2688, code of 1880, whereby actions upon contracts are taken out of the statute’s operation, when a new promise or an acknowledgment, in writing, signed by the party chargeable thereby is shown. By the almost universal agreement of text writers and courts, in this day, judgments are held not to be contracts. The question is discussed in both Freeman on Judgments and Black on Judgments, and nothing could well be added to what is said by these authors. See cases cited in discussion of the question by each. In Wood on Limitation of Actions, also, it is said that the replication to a plea of the statute of a new promise is not good in an action upon a judgment of a court of record. See Wood, p. 135, and authorities cited in note 1.

While some earlier authorities .and some not well-considered opinions call judgments contracts, the weight of reason and later authorities is against the confounding of judgments with contracts. In their striking features, judgments and contracts are markedly dissimilar.

Affirmed.