Merchants National Bank v. Braithwaite

Corliss, C. J.

This appeal is from two orders. One is an order denying defendant’s motion to set aside certain orders in proceedings supplementaiy to execution, and granting to the plaintiff certain relief, not necessary to be now specified. The other order required defendant to deposit in court a sum of money as a condition of vacating a restraining order issued in such proceedings. The sweeping assertion is made by counsel for defendant that the proceedings and all orders therein are void for want of jurisdiction in the judge by whose order such proceedings were instituted and by whom the different orders therein have been made. The judgment on which such proceedings were based was recovered in the District Court of the Territory of Dakota in 1886, three years before statehood. The statute authorizing supplementary proceedings, which was then in force, was section 5174 of the Compiled Laws. This section declared that the order to examine the judgment debtor might be issued by the Judge of the District Court, and that all subsequent orders-must be made by the same judge. The language of the statute is that the judge of the court having power to issue execution on the judgment, and out of which the execution was in fact issued, shall possess the power to make the order for the examination of the debtor and all subsequent orders. It is obvious that, as these proceedings are purely statutory in character, no other judge has any jurisdiction in the matter, because no other judge is named in the statute. It is urged that as the judgment is a judgment of a territorial court, and as that court has ceased to exist, no state court has any power to issue .process to enforce such judgment by execution. Hence it is insisted that the execution, which was in fact issued by the state court in 1890, is void, and that the proceedings based thereon must necessarily fall to the ground for want of foundation. Moreover, it is claimed that, as the state court was riot the court which could issue execution on the judgment, the judge thereof is not the judge who is authorized by § 5174, Comp. Laws, (which was continued in force by the state constitution,) to grant the order made in this case to examine the judgment debtor in supplementary proceedings. We cannot agree with counsel for plaintiff in this contention. The question is one of jurisdiction after statehood over the records and judgments obtained in actions brought in a territorial court. The jurisdiction which formerly was vested in the territorial court over such records and judgments, congress must have intended to be transferred to some other tribunal. We cannot believe that it was the purpose of that body to take from a great mass of judgments in the various courts of the different territories mentioned in the enabling act all force save that of a conclusive adjudication, and compel the plaintiffs therein to go through the formality of bringing suit upon them in the courts of the different states to be admitted into the Union, the same as upon a foreign judgment or the judgment of a sister state. The old courts having jurisdiction over cases in which judgments had been ordered were to be swept away. New courts were to take their place possessing similar jurisdiction. Those judgments were judgments rendered within the same territory to be embraced within the new states. Why, under such circumstances, congress should withhold its consent that the judgments should become the judgments of the state courts which should succeed to the same general jurisdiction as that of the territorial tribunals in which such judgments were rendered is inexplicable. That it did not withhold such consent is clear; and, even if we were in doubt on the point, our duty would be plain. It has been settled by an authority to which we must defer. In Glaspell v. Railroad Co., 144 U. S. 211, 12 Sup. Ct. 593, the Federal Supreme Court held that as to an action not pending at the time of the admission of North Dakota into the Union, but in which a judgment had been rendered in the Territorial District Court, there was no jurisdiction whatever in the Federal Court, but that exclusive jurisdiction of such a case was vested in the State Distinct Court, which was the successor of such territorial court. The case was remanded to the State District Court, the Federal Supreme Court holding that jurisdiction over the judgment in that action rendered by the Territorial District Court had been by the enabling act transferred to the state court. The action in which the judgment was rendered on which are founded the. supplementary proceedings, the validity of which are controverted, was not a pending action, within the meaning either of our statute or of the enabling act. The time to appeal therefrom had expired when the state was admitted, and, even if it had not yet expired, still the suit was not pending, because no proceedings looking to a new trial were then pending, nor has any step to review the judgment on appeal ever been taken in the case. In construing the enabling act, the court in the Glaspell case said that that act had transferred pending cases in which the United States was a party to the Federal Court, and pending cases over which a Federal Court would have no jurisdiction to the state courts, and that the jurisdiction over all cases which were no longer pending, and over the records and judgments therein, was vested in the state courts, without reference to the question whether such cases must have been brought in a state or a Federal Court, had the territory been a state at the time such actions were commenced. The enabling act, by its express provisions and the implications thereof, divided all actions, so far as the jurisdiction thereof was concerned, into two great classes, — those which were pending and those which were not pending at the time of statehood. It declared that as to pending actions jurisdiction over all actions to which the United States was a party should vest absolutely in the new Federal Courts created in such new states; that as to all suits over which the Federal Courts would have had no jurisdiction had the territory been a state at the time they were brought, the jurisdiction thereof should pass to the proper state courts; and that with regard to the middle class of cases, i. e. those in which the state and Federal Courts would have had concurrent jurisdiction had the territory then been a state, either of the- parties to the proceedings might determine whether he would continue the litigation in the state or in the Federal Court. Until the necessary steps should be taken to transfer such cases, the enabling act contemplated that the proper court for them to be carried on in was the state court, and not the Federal Court. It was only after an application for a transfer had been made that the state court was to lose jurisdiction. Until then the jurisdiction over the case was lodged in the state, and not in the Federal Court; and, unless the application for such transfer should be made in time, the jurisdiction of the state court over the case would become absolute. Section 23, Enabling Act; State v. Barnes, 5 N. D. 350, 65 N. W. Rep. 688. Congress declared that, with respect to all pending actions save those belonging to a single class, the jurisdiction thereover should vest in the state courts temporarily at least, and with regard to some of them permanently; and that, even in those cases in which it was in the power of either party to divest the state court of jurisdiction, the state court should retain jurisdiction if neither party should make a timely application for that purpose. As to actions which were no longer pending, there was no reason for providing that jurisdiction over such cases should be transferred to the federal courts, whether with or without the application of either of the parties. In such cases - the merits would no longer remain open to investigation, and therefore there would be no reason for taking jurisdiction of those cases away from the state coui'ts. No prejudicial, hostile state action could be apprehended. What was more natural and reasonable than to vest jurisdiction over such cases in the state courts? Considering the provisions of the enabling act, in connection with the failure of congress to vest jurisdiction over territorial judgments in the -Federal Courts, and the fact that congress in passing that act must have contemplated that the state constitution would create state courts having jurisdiction similar to that possessed by the territorial courts, and that these would be the courts better fitted to enforce judgments throughout the different counties in the state, we must infer an implied assent by congress that jurisdiction over cases not pending should vest in state courts exclusively. Otherwise we must assume that those cases were to be left without any court possessing jurisdiction over them for any purpose whatever, for it is clear that no jurisdiction over them is vested by the enabling act in the Federal Courts. Said the court in Glaspell v. Railroad Co., 144 U. S. 211, 12 Sup. Ct. 596: “The record of cases of exclusive federal jurisdiction which have gone to judgment should, indeed, be transmitted to the circuit court, and the judgments there enforced; but, where final judgment has been rendered in cases of concurrent jurisdiction, no reason can be assigned for, nor do the terms of the act of congress contemplate such a transfer.” If it be said that the assent of the people of the state was requisite to vest jurisdiction in the state courts over cases which had ceased to be pending at the time the state was admitted because they had theretofore terminated in judgment, we find this assent in the constitution. Section 6 of the schedule provides: “Whenever the Judge of the District Court of any district elected under the provisions of this constitution shall have qualified in his office, the several causes then pending in the District Court of the territory within any county in such district, and the records, papers and proceedings of said District Court, and the seal and other property pertaining thereto, shall pass into the jurisdiction and possession of the District Court of the state for such county, except as provided in the enabling act of congress.” This section transferred all records, papers, and proceedings of the Territorial District Court to the jurisdiction of the State District Court, without reference to the question whether the case was or was not pending. By this section the people, speaking through their fundamental law, have, with the assent of congress, vested jurisdiction over judgments of the Territorial District Courts, in the proper State District Court, and the judgments were thereafter as much judgments of the State District Court as though they had been rendered by such courts. That is the court which must issue execution upon such judgment, and therefore it is the court which must furnish the judge who is authorized to make all orders in supplementary proceedings based thereon. The opinion of the Federal Supreme Court in Benner v. Porter, 9 How. 235, appears to us to support our ruling on this point: “We have said that the assent of congress was essential to the authorized transfer of the records of the territorial courts, in suits pending at the time of the change of government, to the custody of state tribunals. It is proper to add, to avoid misconstruction, that we do not mean thereby to imply or express any opinion of the question whether or not, without such assent, the state judicatures would acquire jurisdiction. That is altogether a different question. And, besides, the acts of congress that have been passed, in several instances, on the admission of a state, providing for the transfer of the federal causes to the District Court, as in the case of the admission' of Florida, already referred to, and saying nothing at the time in respect to those belonging to state authority, may very well imply an assent to the tranfer of them by the state to the appropriate tribunal. Even the omission on the part of congress to interfere at all in the matter may be subject to a like implication.’’

We see no force in the contention of counsel for defendant that under the constitution a judge no longer has power to perform any judicial act, but that the same must be performed by the court, and that, therefore, a judge cannot make an order in supplementary proceedings. It is entirely competent for the legislature, under our constitution, to authorize a judge to exercise judicial functions when not sitting as a court, and territorial laws of this character, such as section 5174, Comp. Laws, were not affected thereby. In Minnesota, as in this state, the judicial power is vested in the courts named, and not in judges. (Const. Minn. Art. 6, section 1;) and yet section 5486 of the General Statutes of 1894 authorizes the District Judge to make orders in supplementary proceedings, and his power to do so has never been questioned in that state.

It is insisted that the proceedings are all irregular because the execution issued upon the judgment was not returned within the statutory time. But there is nothing in the statute which makes it indispensable that this should be done to sustain these proceedings. All that is required is that the execution shall be issued and returned unsatisfied. This was done. Moreover, it was rather late, after submitting to examination and after the appointment of a receiver without moving to dismiss on this ground, to raise the point for the first time on a motion to dismiss all the proceedings and set aside all the orders made therein. Baker v. Herkimer, 43 Hun. 86; Ammidon v. Walcott, 15 Abb. Prac. 314.

It appears to be urged as one of the reasons why defendant’s motion should have been granted that his examination disclosed legal assets upon which execution could be levied. This might furnish a sufficient reason why a District Judge should, in his discretion, refuse to appoint a receiver or withhold the appointment of one until such legal assets had been exhausted. But, even in such a case, we could not disturb an order appointing a receiver. The discretion is one with the exercise of which we would not interfere. Receivers in such proceedings are appointed ■even when no property is found on the examination. The receiver may be able to discover some. There is nothing to show that these alleged legal assets are sufficient to pay the plaintiff’s judgment. Moreover, the order appointing the receiver was not appealed from, and the point cannot be raised on an appeal from, an order refusing to dismiss the proceedings and all orders thereunder. The proper time to present reasons why a receiver should not be appointed is when the application for his appointment is made. If the objection to such appointment is overruled, the defendant must review the decision by an appeal from the order appointing the receiver. If he suffers the time to appeal from such order to pass, he cannot thereafter raise the point.

After the receiver had been appointed, he applied to the court for a discharge on the ground that he was about to leave the state, and desired to be relieved from the further discharge of the duties of the receivership. His application was granted, but in the same order the restraining order was continued, and subsequently an order to show cause why another receiver should not be appointed to fill the vacancy was issued by the. District Judge. What disposition has ever been made of this motion does not appear. The motion appears to be still pending. Defendant then moved that the proceedings be dismissed, and also that the restraining order be vacated. The motion to dismiss was denied. The motion to vacate the restraining-order was granted on condition. .The order is in the following words: “Ordered, that the said restraining order heretofore existing and now in force in such matter be, and the same is hereby, dissolved upon condition, and when the said William Braithwaite shall deposit the sum of nineteen hundi'ed and twenty-five dollax-s with the Bismarck Bank, of Bismarck, at 5 per cent, intei'est per annum, upon certificate of special deposit, and payable to Walter Skelton, clex'k of this court, upon the order of the court, after a final determination of this px'oceeding, or as may be finally detex-mined in this proceeding, in whatever coui't it may be finally decided, and that said certificate be deposited immediately with the clerk of this court, and to be disposed of as hereinbefore stated; and that the plaintiff give a good and sufficient undei'taking, with sureties to be appi'oved by the coui't, in the sum of five hundred dollars, conditioned that the plaintiff will pay the said William Bx'aithwaite, in case he prevails, his costs and disbursements of this proceeding, and all loss of interest upon the amount of said special deposit, not exceeding the legal rate of seven per cent, per annum, less the x-ate collected on said special deposit; and that the said undertaking and a copy thereof served upon the said Braithwaite’s attorneys, and the oi'iginal filed with the clerk of this court, on or before the end of fifteen days from the date hereof, or said sum so deposited to be immediately returned to said William Braithwaite and released from this order.” When the motion to dismiss the proceedings was denied the order then entered contained the following directions: “Ordered, that the certificate of deposit heretofore placed in the hands of the clerk of this court for the sum of $1,925 be indorsed and delivered by-said clerk to the plaintiff herein in accordance with the order heretofore made in this proceeding, and dated the 3d day of April, 1897, which said order is hereby referred to and made a part hereof; and that the money represented by and so received by the plaintiff upon said certificate be applied upon the judgment in this action and the costs and disbursements incurred in said supplementary proceedings.”

It is urged that the motion to dismiss the proceedings should have been granted, and that, therefore, the order denying defendant’s motion to dismiss should be reversed. This claim of defendant is based on the postulate that the judgment at the time the motion was made had ceased to have any vitality. More than 10 years had at that time elapsed since its recovery. It is true that at the time the judgment was rendered the law permitted an action thereon to be brought within twenty years from the date of its rendition. Comp. Laws, sections 4848, 4849. But on January 1, 1896, when the Revised Codes went into effect, the limitation period was reduced to 10 years. Rev. Codes, sections 5199, 5200. The judgment having been recovered April 15, 1886, the plaintiff then still had after January 1, 1896 (3yi months,) in which to commence an action thereon, and secure a new judgment, which would be good for another period of 10 years. It is claimed by counsel for defendant that the plaintiff had a reasonable time in which to sue, under the new limitation law, and that, therefore, it will not impair the obligation of any contract right of the plaintiff to hold that the new statute, which in terms embraces past as well as future judgments, controls its rights. It is well settled that the time in which to commence an action may be lessened as to existing causes of action, provided the suitor has still a reasonable time after the new law is passed in which to commence his suit. Howell v. Howell, 15 Wis. 60; Koshkonong v. Burton, 104 U. S. 668, and cases cited; Bigelow v. Bemis, 2 Allen, 496; Dale v. Frisbie, 59 Ind. 530; Mitchell v. Clark, 110 U. S. 633, 4 Sup. Ct. 170, 312; Terry v. Anderson, 95 U. S. 628; Holcombe v. Tracy, 2 Minn. 241, (Gil. 201;) Smith v. Packard, 12 Wis. 412; Hyman v. Bayne, 83 Ill. 256; Parsons v. Wayne, Circuit Judge, 37 Mich. 287; Sampson v. Sampson, 63 Me. 328; Dyer v. Gill, 32 Ark. 410; Parker v. Kane, 4 Wis. 1, and Vilas & Bryant’s notes; Von Baumbach v. Bade, 9 Wis. 559; Eaton v. Supervisors, 40 Wis. 668; Baker v. Supervisors, 39 Wis. 444; Guillotel v. Mayor, etc., 55 How. Prac. 114.

That 3^ months is a reasonable time might perhaps admit of doubt. On that point we express no opinion. But it is evident that plaintiff was notified as early as March 2, 1895, when the Revised Codes were approved by the governor, that as soon as the new limitation statute went into effect its time would be cut down to 10 years. From March 2, 1895, to January 1, 1896, the plaintiff received daily notice that after the new codes went into operation it could no longer wait 20 years to sue upon the judgment. That the reasonable time is to be computed from the day when the new law is passed, and not from the time when it takes effect, is well settled. State v. Jones, 21 Md. 432; Smith v. Morrison, 22 Pick. 430; Stine v. Bennett, 13 Minn. 153, (Gil. 138;) Hedger v. Rennaker, 3 Metc. (Ky.) 258; Bigelow v. Bemis, 2 Allen, 496. Counting from the day when the 10 year statute was approved by the governor, the plaintiff had over 13 months in which to bring an action upon his judgment. This was a reasonable time, under all the authorities. Holcombe v. Tracy, 2 Minn. 241, (Gil. 201;) Stine v. Bennett, 13 Minn. 153, (Gil. 138;) Smith v. Packard, 12 Wis. 412; Bigelow v. Bemis, 2 Allen, 496; Korn v. Browne, 64 Pa. St. 55; State v. Jones, 21 Md. 432.

While it is usual for the new limitation law which cuts down the period within which certain actions may be brought to provide in terms that all suitors whose causes of action had accrued before the change was made should have, in any event, a specified time in which to sue, yet we do not think that this provision is essential to the validity of such a statutory change, when applied to existing causes of action, provided the time actually left in which to sue is not unreasonable. In the following cases no fixed period was given by the new law in which subsisting rights of action might be enforced, but all cases were brought within the provisions of the statute as fully as if it had existed, when the existing causes of action arose, and yet in none of these decisions do we find any intimation that for this reason the law was unconstitutional as to causes of action which had already accrued, the plaintiff having in each of these cases a reasonable time to sue as a matter of fact: Bigelow v. Bemis, 2 Allen, 496; State v. Jones, 21 Md. 432; Burke v. Association, 40 Minn. 506, 42 N. W. Rep. 479. If in the particular case the time is not reasonable, the court must either declare that the statute does not embrace such a case, or that with respect thereto it is unconstitutional because it impairs the obligation of a contract.

The question then, for decision, is whether, under the Revised Codes, a judgment is, after 10 years, so utterly extinguished by the statute that proceedings to enforce the same fall to the ground, though instituted while the judgment was still alive. No action on a judgment can be brought after 10 years. Revised Codes, § § 5199, 5200. No execution thereon can be issued after 10 years. Section 5500. At the expiration of that period it ceases to be a lien on real estate. Section 5490. It is true that the statute declares that supplementary proceedings may be instituted thereon at any time after execution is returned unsatisfied. Section 5562. But this section was not passed for the purpose of giving the judgment creditor an unlimited period beyond 10 years in which to enforce a judgment which could not be enforced by execution, which was no longer a lien on real property, and on which no action would lie. This section fixes the time when the right to institute such proceedings accrues, but it does not attempt to regulate the question of limitation at all. That question is left to other provisions of the code. If, as we think, the other sections of the code clearly show the legislative purpose to destroy the judgment after io years, then it was unnecessary to prescribe in terms any period after which supplementary proceedings could not be instituted or carried on. Such proceedings are analogous to proceedings under an execution. They are a statutory substitute for the old mode of reaching equitable assets by a creditor’s bill. 3 Rum. Prac. 398, 399. They are not an action on the judgment. See Newell v. Dart, 28 Minn. 248, 9 N. W. Rep. 732. They are prosecuted for the same purpose for which an execution is employed, i. e. as a means of enforcing a valid subsisting judgment. When once it is ascertained that for any reason there is no longer any judgment, the proceedings to enforce it must fall to the ground. It is immaterial whether the judgment has been paid or has ceased to possess life owing to the lapse of time. In either case, there is no longer any judgment left to support the steps taken to enforce it. A strange condition of the law would it be if, after the lien of the judgment on real estate had been lost, and after the plaintiff was powerless to enforce it by execution, and despite the fact that he could no longer give it new life by a suit upon it resulting in the recovery of a new judgment, he could nevertheless, through a receiver in supplementary proceedings, reach and sell the debtor’s lands, and subject all his assets, legal and equitable, to the payment of the very same outlawed judgment. We were at first much influenced in our views by certain decisions in the State of New York. Without attempting to analyze them, we cite them, that it may be seen whether the ground on which we distinguish them from the case at bar is sound: Townsend v. Tolhurst, (Sup.) 10 N. Y. Supp. 378; Bolt v. Hauser, (Erie Co. Ct.) 10 N. Y. Supp. 397; Rose v. Henry, 37 Hun. 397; Waltermire v. Westover, 14 N. Y. 16; Herder v. Collyer, (Com. Pl.) 6 N. Y. Supp. 513; Kincaid v. Richardson, 25 Hun. 237; Bolt v. Hauser, (Sup.) 11 N. Y. Supp. 366. It is apparent that in New York the statute was leveled at only a particiilar remedy, and therefore the courts rightly held that all other remedies remained unimpaired. But our statutes, when construed together, clearly evince a legislative purpose to wipe out a judgment after io years, unless suit thereon is brought within that period, and, even in that event, to keep it alive solely as the foundation for such suit, and not for general purposes. See Ross v. Duval, 13 Pet. 45, where Mr. Justice McLean says: “It cannot be supposed that the legislature would bar an action on the judgment, and still authorize an execution on it.’’ The judgment was therefore extinguished at the time defendant made his motion to set aside the supplementary proceedings. The fact that such proceedings had been commenced in time, upon a perfectly valid judgment is no answer to the motion. to set them aside after the judgment had ceased to be valid. Newell v. Dart, 28 Minn. 248, 9 N. W. Rep. 732; McAleer v. Clay Co., 42 Fed. Rep. 665. In the case first cited a creditors’ suit had been brought on a valid judgment, but during its pendency the judgment became putlawed. The court held that the action must be dismissed, saying: “Hence, before the final trial and decision of this case, and before judgment rendered therein, plaintiff’s judgment had ceased to exist either as a cause of action or a lien, unless kept alive by the commencement -and pendency of this action beyond the statutory period of ten years. We do not think the pendency of this action had any such effect. It is not in any proper sense, as before remarked, an action brought upon the judgment as a cause of action, in order to obtain a new judgment, but simply an action ancillary to, and for the purpose of obtaining satisfaction of, an existing judgment. * * * We fail to see any distinction [in principle between a case where, for the purpose of enforcing his judgment, a party rpsorts to execution to reach property liable to such process, and a case where, for the same purpose, he proceeds by creditors’ bill or supplementary proceedings to reach assets not subject to execution. In both cases the object is the same, — to reach property of the debtor in order to satisfy an existing judgment,- — and there is no more reason why a creditors’ bill or supplementary proceeding (which is a statutory substitute for the former) should continue the life of a judgment beyond the statutory period in the one case than that a levy under an execution should do so in the other. We are therefore of opinion that plaintiff’s judgment became barred and ceased to exist, either as a cause of action or as a lien, during the pendency of this action.” That it was proper to raise the question by motion is evident, for in no other way could it be raised under the circumstances, the proceedings being originally valid, and having become assailable only after all other modes of attacking them were gone. Leo v. Joseph, (Sup.) 9 N. Y. Supp. 612; Smith v. Paul, 20 How. Prac. 97; World Co. v. Brooks, 7 Abb. Prac. (N. S.) 212.

(75 N. W. Rep. 244.)

For the reasons stated the motion of defendant to set'aside the supplementary proceedings should have been granted. It follows that the order denying that motion must be reversed. The District Court will enter an order granting such motion. The defendant will be entitled to have a provision inserted in such order directing the return to him of the certificate of deposit mentioned in the' order vacating the restraining order.

All concur.