Heakes v. Heakes , 157 Ga. 863 ( 1924 )

Gilbert, J.

The court did not err in refusing to dismiss the petition as a whole. It was not subject to the general demurrer on the ground “that said petition sets forth no cause of action in favor of said plaintiff against this defendant.” Conceding, for the present purposes, that suit on the chancery decree of Alabama, purely as a suit ou a. foreign judgment, was barred by the statute of limitations under the Civil Code (1910), § 4354, the petition also sought a recovery based on the obligation of the defendant to pay to the plaintiff $75 per month, which obligation was founded on the chancery decree.. “A judgment is a chose in action, and, according to the views of Blackstone,. constitutes a debt.” 15 R. C. L. 575, .§ 8; and see Helms v. Marshall, 121 Ga. 769, at p. 771 (49 S. E. 733). It was alleged that the defendant had paid many of these installments at the times required by the decree, and that each payment was a renewal of the obligation by the deféndant. Very soon after the establishment of this court it was held that “An action of debt will lie on a dormant judgment in this State.” Lockwood v. Barefield, 7 Ga. 393. In that case suit was filed upon a judgment rendered more than seven years before the suit. The defendant demurred on the ground that by the statutes of limitation in this State the judgment was void and of no effect, and could be levied only by scire facias. The court sustained the demurrer, and that judgment was reversed by this court. ’ Judge Nisbet, delivering the opinion, said in part: “The object of both acts [referring to dormancy of judgments] is primarily and mainly to prevent a fraudulent enforcement of dormant judgments. They contemplate no benefit to the defendant, but aim at the protection of innocent purchasers and vigilant and bona fide creditors from frauds, perpetrated through the agency of judgments which, being paid, are collusively kept open.” In Carter v. Coleby, 8 Ga. 351, Judge Nisbet again speaking for the court, it was held: “The act of 1823 is not intended for the benefit of judgment debtors; it is not a limitation act, except so far as other creditors and purchasers are concerned. It was intended for their benefit and protection, and the object is effected by extinguishing the lien, and incapacitating the judgment for enforcement. For all other purposes it remains unimpaired. It is evidence of a debt, and an action can be sustained upon it.” The same principle was announced in Williams v. Price, 21 Ga. 507. See also Columbus Fertilizer Co. v. Hanks, 119 Ga. 950, at p. 956 (47 S. E. 222). “A scire facias to revive a dormant judgment is in the nature of a suit, and the defendant is bound to plead all matters of defense that he has, just as he would in an ordinary suit, or else he will be, after the judgment, concluded as to any defense which could have been made the subject-matter of a plea. Lewis v. Allen, 68 Ga. 400. . . A dormant judgment is a debt of record, and the rules above referred to [referring to the plea of the statute of limitations] apply to a proceeding instituted thereon, whether it be an ordinary suit on the judgment or a scire facias to revive the same.” Helms v. Marshall, supra.

The dormancy statute is a limitation on the right to enforce the judgment. Section 4354 of the Code of 1910, which provides that all suits upon foreign judgments shall be brought within five years after such judgment is obtained, is immediately followed in the next section by the statute in regard to the dormancy of judgments. Both of these sections are listed in the Code under the caption: “Article 8. Of Limitations of Actions on Contracts. Section 1. Periods of Limitation.” So we conclude that the principles applicable to limitation of actions on judgments are the same or analogous to those applicable to dormancy of judgments. Even if the judgment is barred, the debt is not. Outside authorities on this question are, as might be expected, not in complete harmony. Some of the decisions, upholding the view which we have taken, particularly with regard to the result, are here mentioned. “The statute of limitations requires an action on a judgment to be brought within five years; but when a judgment is rendered in installments, the time begins to run from the period fixed for the payment of each installment as it becomes due.” DeUprey v. DeUprey, 23 Cal. 352. This was a case where suit was brought to enforce the payment of past-due installments of alimony. “Where a judgment is made payable in installments, the statute of limitations applies to each installment separately, and does not begin to run on any installment until it is due.” Simonton v. Simonton, 33 Idaho, 255 (193 Pac. 386), and authorities cited; Arndt v. Burghardt, 165 Wis. 312 (5) (162 N. W. 317); Arrington v. Arrington, 127 N. C. 190 (37 S. E. 212, 52 L. R. A. 201, 80 Am. St. R. 791); Shafner v. Shafner, 182 Ill. App. 450; McGill v. McGill, 101 Kans. 324 (166 Pac. 501), and authorities cited.

The remaining headnotes do not require elaboration.

Judgment on the main bill of exceptions affM'med. Gross-bill dismissed.

All the Justices concur, Athinson, J., specially.