Swift Co. v. Weston , 88 Mont. 40 ( 1930 )

In this action the only statutes of the state of Nebraska pleaded in the answer are sections 1480 and 1463, quoted in the majority opinion. The cases of Armstrong v. Patterson,97 Neb. 871, 152 N.W. 311, and Holmes v. Webster, 98 Neb. 105,152 N.W. 312, 313, do not hold, as stated in the majority opinion, that section 1480 bars action on a domestic judgment in five years. In those cases the court was considering sections 7566 and 7567, Revised Statutes of Nebraska 1913, which provide: (7566) "Civil actions, other than for the recovery of real property, can only be brought within the following periods, after the cause of action shall have accrued." (7567) "Within five years, an action upon a specialty, or any agreement, contract or promise in writing, or foreign judgment." It was held in those cases that, because of section 7567, an action on a judgment is barred in Nebraska after five years from its rendition.

Section 7567 was not here pleaded, but, if it may be noticed judicially, then likewise section 7577, Nebraska Revised Statutes of 1913, should receive judicial notice. That section provides: "If, when a cause of action accrues against a person, he be out of the state, or shall have absconded or concealed himself, the period limited for the commencement of the action shall not begin to run until he come into the state, or while he is absconded or concealed; and if, after the cause of action accrues, he depart from the state, or abscond or conceal himself, the time of his absence or concealment shall not be computed as any part of the period within which the action must be brought." Here the record discloses that defendant has not resided or been in the state of Nebraska since the rendition of this judgment, except for two or three months.

By the great weight of authority, under statutes such as section 7577, absence of the judgment debtor from the state tolls the running of the statute of limitations in an action on a judgment. The cases pro and con are listed in the carefully considered and well-prepared opinion of Mr. Justice Burke, speaking for the supreme court of North Dakota in Union Nat.Bank of Grand Forks v. Ryan, 23 N.D. 482, Ann. Cas. 1914D, 741, 137 N.W. 449.

When all the statutes of Nebraska are considered in the light of the facts here shown, the judgment in question is not barred by limitations by the laws of that state. I have considered this question from the point of view entertained by the majority that the laws of Nebraska control as to the statute of limitations, although the rule seems to be that the question whether a judgment is barred by limitations must be determined by the laws of the forum. (34 C.J. 1109.) But, whichever law should be applied, the result is the same. Action on the judgment is not barred by either the laws of Nebraska or Montana, under the facts here shown.

Has plaintiff the right to maintain an action on the judgment? I think it has. The supreme court of Nebraska, in Snell v.Rue, 72 Neb. 571, 117 Am. St. Rep. 813, 101 N.W. 10, 11, said: "The right to prosecute revivor proceedings and the right to maintain an action upon the judgment are merely cumulative remedies. The plaintiff may have either or both, as he sees fit." While the Snell Case has been overruled by the Armstrong andHolmes Cases, in so far as the applicable statute of limitations is concerned, there has been no departure from the rule announced in it that the remedies are cumulative. Should revivor proceedings be instituted, that must be done in the court rendering the judgment. (Holmes v. Webster, supra.) But the right to maintain action is not thus restricted. The supreme court of Iowa, under the identical Nebraska statutes here involved, in Chaloupka v. Martin,179 Iowa, 1173, 162 N.W. 567, where the Nebraska decisions were considered, held that action may be maintained in Iowa on a judgment rendered in Nebraska even though the judgment had become dormant under the laws of the state where rendered. I think the conclusion there reached was correct and that the principles stated in the opinion of the court have application here. In my opinion the correct conclusion was announced in the first opinion promulgated herein, and the judgment should be affirmed.