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on which he was to be allowed three dollars a the trees should be his, which she refused to do, week for his mother's support. Plaintiff alleges and informed him, if he set them on her land, that he was running behind, and in 1893 inform- he did so at his own risk. That complainant proed defendant that he should leave the farm, and ceeded to set said orchard, without the consent that thereupon he made with her the agreement of said defendant; and that again, in December, which he now seeks to enforce. This agreement 1894, the defendant, hearing that said comis set forth in the bill of complaint in the fol- plainant intended to set more trees upon her said lowing language: “Said Selina Birdsall propos- premises, served another written notice upon ed to your orator that he try the experiment of him, forbidding him from so doing, and, after raising fruit upon a portion of said farm, and receiving such notice, complainant proceeded to aid then and there orally agree with your orator set other and additional trees in said orchard, to that in case he would remain on said farm, and the number of about 250 peach; and that derenew his said lease, and would buy, pay for, fendant has never given her consent to the setplant, and care for, until their bearing period ting of any of the trees in the orchard claimed by was reached, such a quantity of peach, pear, complainant herein, except the said 100 cherry and cherry trees as he, your orator, saw fit to, trees, which defendant did not have the money that the same might be set out on the said to pay for at the time they were delivered, and farm, and should belong to, and be the absolute requested complainant to pay for the same, he property of, your orator, and that she would being indebted to her at that time, and she exrenew her said lease to your orator from time to pecting to apply the amount paid therefor, name time during her natural life, for the same rental iy, $30, upon said indebtedness, and is still willand on the same terms as the first lease so made ing so to do. I further find that the said comfrom her to him as aforesaid, and that upon her plainant is indebted to the said defendant upon death the said orchard should be the property various notes to the sum of five hundred dollars of your orator.” Complainant alleges that he or thereabout, not including the rent from the performed the agreement, and set out some 982 1st of April, 1897. The principal reason that fruit trees, which cost $166, and took care of said defendant objected to the setting of said them until he was ejected from the premises, in trees was that she expected that after her death 1897. He alleges that this agreement was made the premises would go, in accordance with her in the fall of 1893. The defendant answeredt, husband's will, to her five sons, and she feared, denying all the material allegations of the bill, if the orchard was set upon the premises, that it except that she ordered herseli 100 cherry trees might lead to disagreement and difficulty, and to be delivered in the spring of 1894, and asserts possibly to litigation, between her sons after that she objected to the planting of the peach her death. It is therefore hereby ordered, adand pear trees. Proofs were taken in open judged, and decreed that the complainant's bill court, and the learned circuit judge found the be, and the same is hereby, dismissed, with facts and entered a decree as follows: "That costs to said defendant to be taxed. And the the complainant did, in the spring of 1994 and I said defendant, Selina Birdsall, having prayed spring of 189.), set out upon the land of said de- affirmative relief in her answer, in the nature of fendant, Selina Birdsall, described in the bill of a cross bill filed herein, and due consideration complaint filed herein, a cherry, peach, and thereof having been had, it is further ordered, pear orchard, of which there are now living and adjudged, and decreed that the said defendant, growing upon said premises 158 pear, 105 cherry, Selina Birdsall, is entitled to the possession or and 667 peach trees, of which peach trees 420 the premises described in said bill of complaint. were set out in the spring of 1894, and 217 in the and that the said complainant restore to the said spring of 1895. That the value of said orchard defendant, Selina Birdsall, the possession of the is from $600 to $1,000. That in the spring of same upon her demand, and, in case of failure 1893 there were some peach trees heeled in upon so to do upon demand, that a writ of restituthe premises of said defendant, which said de- tion of the possession of said premises be issued fendant supposed said complainant intended to from this court, in favor of said defendant, Seset out upon her said place; and that, so siip- lina Birdsall, and against said complainant, upposing, she did at that time serve written notice on proper application being made therefor; proupon said complainant, forbidding him from set- vided, that, at her option, said defendant, Selina ting out said peach trees upon her said premises; Birdsall, may institute summary proceedings to and that the said complainant did thereafter set recover the possession of said premises, the the same out upon a farm of his own, in the same as though the writ of restitution had not town of Walker, and disclaimed having any in- been decreed herein." Complainant appeals. tention of setting the same out upon the prem- Aflirmed. Everett D. Comstock (Birney Hoyt ises of said defendant. That in the fall of 1893 and S. D. Clay, of counsel), for appellant. the said defendant, at the suggestion of a fruit- Walker & Fitzgerald, for appellee. tree agent, who was then at her house, ordered , GRANT, C. J. (after stating the facts as 100 cherry trees to be delivered in the spring above). After the date of this alleged agreeof 1894; and that at the same time, but with- ment, complainant asked defendant for a lease out the knowledge of said defendant, said com- for six years.
She refused, and on April 10, plainant ordered the said pear trees and the i 1894, made a new lease for three years. This greater part of the said peach trees; and said lease is in the usual form, and contains no rettrees, including said cherry trees, were delivered
erence whatever to the alleged agreement. It to said complainant in the spring of 1894, and provided that the death of the defendant should were brought by him to the premises of said de- terminate the lease. She was then over 70 fendant, and there heeled in, and the said com- years of age, and testified that she did not anplainant thereupon commenced to plow and pre- ticipate that she should live long, and feared that pare the ground for the setting of said trees. the planting of the orchard would make trouble That the first notice or knowledge that said de- among her sons. We find it unnecessary to defendant had of the purchase of said trees by said termine whether the proofs on the part of the complainant was when they were so heeled in, complainant show a definite, complete, and cerand the first notice or knowledge that said de- tain contract, capable of enforcement. The fendant had that said complainant intended to proofs of the respective parties are in direct set said trees, other than said cherry trees, upon conflict, and the conclusion reached by the cirher said premises, was when he began to plow cuit judge depends upon the credibility to be and prepare the ground therefor. That she at given to the witnesses. The circuit judge sa w that time, and before he had set any of said them, heard their testimony, and made a findtrees, inquired of him, and was informed by him ing of facts. There was ample evidence on the that he was going to set said peach and pear part of the defendant to sustain the finding. We trees upon her land; and she thereupon forbade see no reason to discredit the conclusion reachhim from so doing, and told him not to do so.
ed by the circuit judge. A detail of the eviat the same time asked her to sign a paper saying dence would be profitless, and would neither
serve any good purpose nor form any precedent in other cases. We think the judge reached the correct conclusion, and the decree is affirmed, with costs. The other justices concurred.
bringing into court $701.75 for Mr. Chope; and, after a full hearing in open court, the circuit judge decreed as follows: (1) Complainant's bill was dismissed, with costs; (2) awarded to Chope the $701.75, paid into court, and $12.25, interest on same, which was made a lieu on complainant's interest; (3) decreed Chope to be the owner of an equal undivided half of the contract property, and Bolton the owner of the otber hall; (4) decreed that a physical division of the property cannot be bad; (5) appointed complainant and defendant joint receivers of the property, and directed a sale thereof to the highest bidder for cash, after twenty days' notice. The questions involved are purely ques. tions of fact. A careful reading of the entire record and briefs of counsel shows an utter failure on the part of the complainant to establish a case for relief. It discloses that he understood fully the arrangement of January 22, 1837, when it was made, and desired to make it. It is urged that, as no proof was offered that a physical division of the property cannot be had, the decree in that respect was wrong. It is true, no testimony was offered for that specific purpose, but the record is full of proof tending to establish that fact. A discussion of these ques. tions of fact would not profit any one.
The decree is affirmed, with costs. The other justices concurred.
BOLTON V. CHOPE. (Supreme Court of Michigan. Dec. 13, 1898.) Appeal from circuit court, Wayne county, in chancery; Sherman B. Daboli, Judge. Bill in chancery by Frederick H. Bolton against Robert L. Chope. From a decree dismissing the bill, and granting the relief prayed for in defendant's cross bill, complainant appeals. Afhrined. George W. Radiord, for appellant. Alfred Lucking, for appellee.
MOORE, J. Complainant filed a bill in this case asking for an accounting and for specific performance. Defendant answered complainant's bill, denying the allegations therein contained, and asked that his answer be treated as a cross bill, and prayed for affirmative relief. The circuit judge dismissed the bill of complaint, and granted the relief prayed for in the cross bill. From this decree, complainant has appealed. In November, 1891, the complainant and one Alvord formed a partnership under the firm name of Alvord & Co. for the purpose of buying, selling, and manufacturing office supplies. This partnership was to continue five years. After the expiration of the five years, the firm continued to do business, though the articles of partnership were not renewed. In 1894, the defendant, who was the owner and inventor of machines for making coin cases, was engaged in business under the name of the Bankers’ Coin Case Company. In May, 1894, an arrangement was made by which Chope sold to Alvord & Bolton the business of the Bankers' Coin Case Company, its plant, stock, and good will, and all inventions and patents owned by it, for $10,000; $500 to be paid upon the making of the contract, and $200 or more each month thereafter, with interest until all was paid. The payments were made until January, 1897, when $6,700 had been paid upon the contract. At this time, Alvord had furnished $755, and the balauce had nearly all been paid out of the business. The active partner was Mr. Bolton. Mr. Alvord was a photographer, and did not spend much time with the business, but he made no charge for his services, while Mr. Bolton drew out of the concern, first, his expenses, and then $50 a month. The articles of partnership treated the members of the firm as equal partners, and the record discloses they so treated each other. In January, 1897, Mr. Chope bought Mr. Alvord's interest in the business, for which he paid $2,500. At the same time, the following writing was executed: “Detroit, Mich., Jan'y 22, 1897. For a valuable consideration, and under mutual agreement, between the parties to the foregoing contract, we hereby release Charles E. Alvord from the terms and obligations of the foregoing contract; and I, Frederick II. Bolton, hereby agree to carry out and assume the obligations of said contract, and to receive a one-half interest in said contract for my interest therein, and all rights, patents, and claims covered thereby when said contract is fully completed; and I, Robert L. (hope, hereby agree that said Frederick H. Bolton shall so assume said contract, and said Alvord he released as above stated. [Signed] Frederick H. Bolton. Robert L. Chope. Charles E. Alvord.” After this paper was executed, Mr. Bolton continued to manage the business, and made payments upon the conte tract, until all but $700 of the principal was paid. He then tendered to Mr. Chope the $700 and interest, and demanded from him a receipt in full of the balance due on the contract made by him with Alvord & Bolton, and a conveyance to Bolton of the entire business, plant, stock, and patents. Mr. Chope, claiming to own a half interest therein, offered to convey one half interest, but declined to convey the whole interest. The complainant then filed this bill,
CHICAGO & W. M. RY. CO. 7. COMMISSIONER OF RAILROADS. (Supreme Court of Michigan. Dec. 28, 1898.) Original mandamus proceeding by the Chicago & West Michigan Railway Company against Sy brant Wesselius, the commissioner of railroads. Denied. Smith, Nims, Hoyt & Erwin, for relator. Fred A. Maynard, Atty. Gen., for respondent.
PER CURIAM. This case presents the general question as to whether the sum received by a railroad company for switching cars should be treated by the railroad commissioner as a part of its gross earnings. The case is ruled by Detroit, G. R. & W. R. Co. r. Commissioner or Railroads (rendered herewith) 77 N. W. 631.
RICHARDS v. McCORMICK et al.
(Supreme Court of Michigan. Dec. 13, 1898.) Appeal from circuit court, Wayne county, in chancery; Sherman B. Daboll, Judge. This is a suit in equity by Frank E. Richards, a judgment creditor, against James C. McCormick and others,
to reach property claimed to have been fraudulently transferred. Complainant recovered judgment for $208.70 against the defendants James and Hugh McCormick, Jr., who were engaged in the grocery and meat business. They failed, and transferred the goods to defendant Hugh McCormick, Sr., their father, for the consideration of $1,100. It appears to be conceded that he advanced $500 for the purchase of the stock, and that he paid $600 in cash at the time of the transfer. It is conceded that $1,100 was the fair value of the stock. Complainant's indebtedness was incurred before the transfer, but was not due until some time afterwards. It is contended by complainant that the $500 was not a loan, but a gift, and that the father is liable as trustee of the same to the sons' creditors. The case was heard on pleadings and proofs, and de. cree rendered for the defendants. Complainant appeals. Reversed. Henry B. Graves, for appellant. John J. Jackson, for appellees.
GRANT, C. J. (after stating the facts as above). Upon the hearing, complainant introduced the testimony of defendant Hugh leCormick, Sr., taken in another case, in December, 1895, in which it is claimed he testified that this $500 was a gift to his son, and not a loan, and rested. The defendant was then sworn in his own behalf, and testified that the $500 was loaned. The question presented is one entirely of fact, viz. whether the court should have found that the defendant gave his son the money.
His former testimony cannot be well construed to mean anything else than that he desired to help his son start in business, and made a gift to him of this $500 for that purpose. The stock to this amount was therefore subject to the claims of creditors. Decree reversed, with costs of both courts, and decree rendered for complainant. The other justices concurred.
HEALY V. MANNHEIMER et al. (Supreme Court of Minnesota. Nov. 17, 1898.) Appeal from district court, Ramsey county; Charles E. Otis, Judge. Action by Katherine Healy against Robert Mannheimer and others. Verdict for plaintiff. From an order denying a new trial, defendants appeal. Affirmed. C. D. & Thos. D. O'Brien, for appellants. James J. McCafferty, for respondent.
PER CURIAM. This case involves the same questions as the case of Healy v. Mannheimer (decided at the present term) 76 N. W. 1126, and is ruled by it. The order appealed from is therefore affirmed.
STATE ex rel. ROSEWATER v. HOLCOMB, Governor. (Supreme Court of Nebraska. Nov. 17, 1898.) Application by the state, on the relation of Victor Rosewater, for a writ of mandamus against Silas A. Holcomb, governor of the state of Nebraska. Writ denied. E. W. Simeral, for relator. C. J. Smyth, Atty. Gen., and Ed. P. Smith, Dep. Atty. Gen., for respondent.
PER CURIAM. This action was to compel the respondent to perform certain duties claimed to devolve upon him by virtue of his office. In State v. Moores (Neb.) 76 N. W. 175, it was held that the act of the legislature of 1897 (Laws 1897, p. 124, c. 10, SS 166-168), in so far as it assumes to confer authority upon the governor to appoint fire and police commissioners in cities of the metropolitan class, is void. The duty of which it is now sought to compel the performance depends for its exercise upon the force of the statute above referred to, and, as the statute is void, no such duty exists, and therefore its performance cannot be controlled by mandamus. The writ is therefore denied.
LYNN V. KING et al. (Supreme Court of Minnesota. Jan. 25, 1899.) Action by Anna V. Lynn against Joseph King and others. There was a judgment for plaintiff, and defendant H. W. Thompson, administrator of the estate of Francis Parks, appeals. Reversed.
BUCK, J. There is but one paper book in this case, and that of Lynn v. Hanson, 77 N. W. 976, herewith decided adversely to the plaintiff. The cases were argued at the same time, and upon substantially the same state of facts. Following the ruling in the Hanson Case, the note in controversy must be deemed paid, and the mortgage satistied, and the judgment reversed, and new trial ordered.
BEST v. BARRETT et al. (Supreme Court of North Dakota. June 2, 1898.)
ELEVATORS-STORAGE RECEIPTS--REPLEVIN. Case governed by decision in Best v. Muir (decided at the same time) 77 N. W. 95.
Appeal from district court, Cass county; William B. McConnell, Judge.
Action by William H. Best against L. C. Barrett and others. Judgment for defendant, and plaintiff appeals. Affirmed.
Seth Newman and Newman & Stambaugh, for appellant. Pollock & Scott, for respondents.
CORLISS, C. J. This case is controlled by our decision in Best v. Muir (which has just been decided) 77 N. W. 95. The judgment of the district court is atlirmed. All concur.
CITY OF OMAHA v. FLOOD. (Supreme Court of Nebraska. Dec. 8, 1898.)
Public IMPROVEMENTS-DAMAGES. On the authority of City of Omaha v. Flood (Neb.) 77 N. W. 379, the judgment of the district court in this case is reversed.
Error to district court, Douglas county; Ferguson, Judge.
Action by Andrew Flood against the city of Omaha. Judgment for plaintiff. Defendant brings error. Reversed.
W. J. Connell, for plaintiff in error. F. W. Fitch, for defendant in error.
RAGAN, C. The facts in this case are the same as those in City of Omaha v. Flood, 77 N. W. 379; and, upon the authority of that case, the judgment of the district court in this is reversed. Reversed.
AULTMAN, MILLER & CO. F. NELSON et al. (Supreme Court of South Dakota. Jan. 25, 1899.) Appeal from circuit court, Brookings county; Julian Bennett, Judge. Action in a justice court by Aultman, Miller & Co. against Andrew Nelson and another. Judgment for plaintiff, and defendant Niels Jenson appealed to the circuit court. From an order therein overruling a motion to dismiss the appeal, plaintiff appeals. Affirmed. Jenkins & Farrell, for appellant. Mathews & Murphy, for respondents.
CORSON, P. J. This is an appeal from an order of the circuit court of Brookings county denying plaintiff's motion to dismiss the appeal taken from the judgment rendered by the justice of the peace. The same question is involved as in the appeal of Aultman, Miller & Co. v. Same Defendants, decided at this term, and reported in 77 N. W. 584; the only difference in the two cases being that the judgment rendered by the justice in this case was for $ 114.61 and the undertaking was in double that amount, instead of $220 in the former. This case was, by stipulation, submitted upon the same abstract and briefs as the former, and must therefore be ruled by that decision. The order of the circuit court is atlirmed.
FEIL V. STAACK. (Supreme Court of Nebraska. Dec. 22, 1898.) INTOXICATING LIQLOKS-License-APPLICATIOS.
The propositions of law announced in Feil v. Hotel Co. (Web.) 77 N. W. 311, affirmed.
Ippeal from district court, Douglas county; Baker, Judge.
Action by N. P. Feil against F. A. W. Staack. Judgment for defendant, and plaintiff appeals. Affirmed.
E. W. Simeral, for appellant. Hall & McCulloch, for appellee.
NORVAL, J. The questions involved are identical with those determined in Feil v. Hotel Co. (Neb.) 77 N. W. 31; and, for the reasons stated in the opinion filed therein, the judgment of the district court in the present case is attirmed.
AULTMAN, MILLER & CO. V. NELSON et al. (Supreme Court of South Dakota. Jan. 25, 1899.) Appeal from circuit court, Brookings county; Julian Bennett, Judge. Action in a justice court by Aultman, Miller & Co. against Andrew Nelson and another. From a judgment, there was an appeal to the circuit court; and, from an order therein denying plaintiff's motion to dismiss the appeal, it appeals. Affirmed. Jeukins & Farrell, for appellant. Mathews & Mur. phy, for respondents.
CORSON, P. J. This is an appeal from an order of the circuit court of Brookings county denying plaintiff's motion to dismiss the appeal taken from the judgment rendered by the justice of the peace. The same question is involved as in the appeal of Aultman, Miller & Co. v. Same Defendants, decided at this term, and reported in 77 N. W. 581; the only difference in the two cases being that the judgment rendered by the justice in this case was for $114.81, and the undertaking was in double that amount, instead of $220 in the former. This case was, by stipulation, submitted upon the same abstract and briefs as the former, and must therefore be ruled by that decision. The order of the circuit court is attirmed.
PILLAR V. RUNKEL, ROWLEY & CO. (Supreme Court of South Dakota. Dec. 17, 1898.) Appeal from circuit court, Meade county; A. J. Plowman, Judge. Attachment by Dexter Pillar against Runkel, Rowley & Co., a corporation organized and existing under the laws of South Dakota. From an order overruling a motion to discharge the attachment, defendant appeals. Affirmed. Rice & Polley and Burke & Goodner, for appellant. Smith & Brown, for respondent.
FULLER, J. As the record now before us presents questions of law and fact identical with the case of Chaffee v. This Defendant (S. D.) 77 N. W. 583, an opinion would be but a needless repetition. Controlled by the conclusion there reached, the order overruling a motion to discharge the attachment is affirmed.
WINONA MILL CO. v. STATE. (Supreme Court of South Dakota. Nov. 18, 1898.) Original action by the Union Mill Company against the state of South Dakota. Judgment for plaintiff. Horner & Stewart and A. W. Burtt, for plaintiff. The Attorney General, for the State.
HANEY, J. This action was submitted upon the pleadings and an agreed statement of facts, and argued in connection with the case of Van Dusen v. State (decided at this term) 77 N. W. 201. The questions of law involved are the same. Plaintiff is entitled to judgment for $310.75, with interest thereon at the rate of 7 per cent. per annum from August 15, 1893, together with the usual costs and disbursements.
from the fact that no authorities exist. In that situation, the decision of the court has the merit of meeting the question fairly and deciding it on the language of the statute, supported only by reasoning from seemingly false premises.
Section 4220, Rev. St., limits actions upon judgments to 20 years, and section 2968, Id., provides that, "in no case shall an execution be issued on any proceedings had upon any judgment after twenty years from the time of the rendition thereof." As indicated above, the er piration of the period of limitation extinguishes, and for all purposes ends, the life of the obligation affected by it. That is the settled rule of this court. Brown v. Parker, 28 Wis. 21; Sprecker v. Wakeley, 11 Wis. 432; Knox v. Cleveland, 13 Wis. 245; Freem. Judgm. $ 27a. That of itself would seem decisive of this case.
The court reasons that the issuance of the execution and proceedings thereon are independent of proceedings on the judgment strictly so called; that when an execution shall have issued, the enforcement of it is a proceeding on the execution, not on the judgment. That seems unreasonable in view of the fact that no proceedings upon a judgment could have been in legislative contemplation other than by execution, except an action upon the judgment, and that is covered by seetion 4220. Rev. St., limiting such an action to 20 years. The two sections of the statutes make a complete scheme of limitations as to judg. ments, framed with scrupulous care to effectually destroy and end a judgment after the creditor shall have had a period of 20 years to enforce it. Freem. Ex'ı, $ 19.
The reasons given by my brethren for the conclusions reached are inexplicable to me. It is said that unless such conclusion be correct, no execution against real estate can be made effective unless issued nearly a year and a half before the expiration of the 20 years. because the sheriff must advertise the sale for 6 weeks, and then there is the 15 months allowed for pe. demption which must expire before the sale can be fully consummated by deed to the purchaser or his assignee. That suggestion shows, we assume, the principal reason for the decision of the court. The assumed result of a construction of the statute contrary to that reached by the court, was deemed so out of harmony with good reason as to warrant a conclusion that the legislature did not intend it. and it was considered that the language of the section admits of a different and more reasonable construction. Re move the premises upon which the reasoning referred to is based and the decision must necessarily fall as a result. Now it is not true that there must be a subsisting judgment during the period of redemption. Further, it is not possible that there should be such a subsisting judgment. The sale to satisfy the judgment is inconsistent with its remaining unsatisfied for any length of time after the sale. A sale of real estate on an execution, for the amount called for by it, satisfies it and satisfies the judgment as well. This court has decided that question and it is ele. mentary. Ingraham v. Champion, 81 Wis. 235. 54 N. W. 398. There it will appear that the court held that no proceedings were proper to revive or renew a judgment after a sale to satisfy it, because there was nothing left for the proceedings to rest upon. There was no longer auy judgment or any basis for a judgment. The deed that follows the sale on execution is based on the sale, not in any sense on the judgment, except as of the time of the sale itself. The sale and issuance of the certificate fix absolutely the rights of the purchaser. That we deem to be elementary, and to have been overlooked. A judgment can no more exist after a sale for enough to pay it, than the execution can exist after the satisfaction of the judgment. They are mutually dependent upon each other. Benj. Sales, $ 478. Further on the subject before treated, that no proceeding to collect a judgment can be had on execution after the judgment shall have been extinguished, see Kennedy v. Dunck.
BROWN v. HOPKINS et al. (Supreme Court of Wisconsin. Feb. 7, 1899.) For majority opinion, see 77 N. W. 899.
MARSHALL, J. (dissenting). I think the limitation statutes mean that no proceedings of any kind, by execution or otherwise, shall be taken to enforce a judgment after the expiration of 20 years from its rendition; that the expiration of the limitation period extinguishes the judgment the same as a payment of it, leaving no foundation upon which an execution thereon can rest. The idea that an execution, a mere means for collecting a judgment, can have life after the judgment itself shall have been destroyed, is to the writer a most novel and unreasonable proposition.
The necessity usually existing in writing a dissenting opinion, of attempting to clear away the case made by authorities on the other side of the controversy, does not exist here. That lightens our labor. It will be observed that my brethren do not ground their position on authorities. None were cited by the appellant. None were discovered by the learned judge who wrote the opinion of the court. None by those who concur therein. The writer has not been able to discover any. That all probably results
lee, 1 Gray, 65; Laval v. Rowley, 17 Ind. 36; the judgment, already extinguished by some othState v. Salyers, 19 Ind. 432; Wood v. Colvin, er means. 2 Hill, 566.
Attention to the holdings elsewhere shows that Thus, it will be seen that it is only necessary the rule is universally recoguized that an executhat a judgment should live for a period of tion neither extends nor revives a judgment. about six weeks after the issuance of an exe- There are many such cases. We refer to a few cution in order to allow a valid sale to be made of them: Mullikin v. Duvall, 7 Gill & J. 355; within the life of the judgment-not a year and Johnson v. Hines, 61 Md. 122; Davis v. Ehra half,--so the significant reason advanced by man, 20 Pa. St. 256; Isaac v. Swift, 10 Cal. my brethren, for the construction of the statute 71; Bagley v. Ward, 37 Cal. 121; Rogers v. adopted, disappears.
Druffel, 46 Cal. 654. Such cases are all to the Having now shown that the running of the effect that an execution is a mere means of colstatute of limitations upon a judgment extin- lecting the judgment, or enforcing the judgment guishes it, that there can be no proceeding on lien, and that a sale passes only such interest as an execution issued on a judgment after it shall attaches to the subject of the sale under the hare been extinguished, and met successfully the judgment at the time of the sale; that the erechief and only reason for the decision dissented cution of itself does not create a lien, or extend from, we will review briefly authorities else- a lien, or support a sale. In Bagley y. Ward, where on the general and kindred subjects, and supra, the court said, in substance, that the islet that close this opinion.
suance of an execution and levy thereunder, neiIn the first place we will refer to Ingraham v. ther extends an old lien nor acquires a new one; Champion, supra. That is of far greater signifi- that the sale carries to the purchaser just such cance, it would seem, than my brethren attribute interest as may be represented by a then-existing to it. The sale there was made just before the judgment. It is held that an execution does not expiration of the 20 years. There was a ques- affect the judgment, basing the doctrine on the tion as to whether the land was subject to sale ground that the opposite rule would operate to for the payment of the judgment. The purchas- extend the judgment lien beyond the statutory er desired to test that question within the life period. That same reasoning applies very forof the judgment, so that if the sale should prove cibly to the idea that an execution can extend fruitless the judgment might still stand as a the judgment itself beyond the statutory period. valid indebtedness. There is where the idea is To recapitulate: First, the expiration of the suggested, of the necessity of a judgment being limitation, upon proceedings to enforce a judgkept alive during the period of redemption, be- ment or to renew it, extinguishes it; second, an cause, as it was said, the purchaser at the ex- execution dies with the extinguishment of the ecution sale could not be in a position to test judgment upon which it was issued; third, a the question of whether he really obtained any- subsisting judgment is necessary at the instant thing or not by the sale till the expiration of the of the sale of realty upon an execution, but is period of redemption, and the obtaining of a deed extinguished by the sale; fourth, after the sale ipon which proceedings could be instituted. of realty upon execution, the right of the purThe idea was advanced by the parties who wish- chaser is referable to the certificate of sale, not ed to keep the judgment alive, and in reply to to a subsisting judgment after the sale; fifth, that the court said that the sale extinguished as there can be no sale after the judgment shall the judgment; it left nothing to be kept alive; have been extinguished, the sale in question was the execution did not continue the judgment be- void as held by the circuit court, and the judgyond the period of 20 years from its rendition. ment appealed from should be affirmed. True, my brethren are not affected by that, necessarily, because they say that though the judgment be necessary to the issuance of an execu
GLOVER V. HYNES LUMBER CO. et al. tion, it is not necessary to the continuance of the
(Supreme Court of Wisconsin. Nov. 22, 1898.) life of the execution; that having been given
Appeal from circuit court, Portage county; life it continues notwithstanding that upon
Charles M. Webb, Judge. Action by William F. which its validity depends has been removed.
Glover against the Hynes Lumber Company and But as we have shown, the settled law is that
others. From a judgment for plaintiff, defendan existing judgment is absolutely necessary to
ants appeal. Affirmed. Tomkins & Merrill, for a sale on execution, hence when the court de
appellants. Cate, Sanborn, Lamoreux & Park. cided that an execution cannot extend a judg
for respondent. ment beyond the 20-year limitation of its life, it decided just as clearly that a sale of real estate
BARDEEN, J. A former judgment in this
action was reversed because the evidence failed under an execution must take place within the statutory period if at all. That rule would not
to show how much of plaintiff's time and la bor necessarily apply to a levy upon personal prop
were spent in manufacturing the lumber upon erty made within the 20-year period, but not
which he claims a lien. 94 Wis. 457, 69 N. W.
02. realized on till afterwards, because in that case,
The case has been retried, and the jury's by the weight of authority, it is the levy that sat
verdict is for plaintiff, for $813.84 and interest, isfies the judgment, conditionally, not the sale.
$642.38 of which, besides interest, is declared to In case of real estate there is no levy. Every
be a lien upon the lumber described in the comthing after the period of 10 years from the date
plaint. The defendants have appealed from the of the judgment, that being the time when the
judgment, and claim that the verdict is not lien judgment itself terminates, depends on the
supported by the evidence. It would serve no sale and nothing passes, except the interest of
useful purpose to state or discuss the evidence. the judgment debtor, to which the judgment it
The plaintiff was employed to do certain work self can attach at the instant of the sale. Then
as millwright in making permanent repairs on there must exist-First, a valid subsisting judg.
the mill, and afterwards as mill foreman and ment; second, an interest of the debtor in the
millwright. In the latter capacity, he orendered land which is the proposed subject of sale;
services in the manufacture of the lumber in third, a valid execution and valid proceedings
question, and made repairs on the mill to keep thereunder. Collins v. Smith. 75 Wis. 392, 44
it in running order. The time spent by him in N. W. 510; Shafer v. Insurance Co., 33 Wis.
the different kinds of work is suiliciently shown 301. 10 N. W. 391: Hammel v. Insurance Co.,
by the evidence to warrant the conclusion ar54 Wis. 72, 11 N. W. 349.
rived at by the jury. The judgment of the This opinion might well rest alone on In
circuit court is affirmed. graham v. Champion and Collins v. Smith, supra. If they decide anything at all they decide that it takes an existing valid judgment to sup
LATIMER V. ANDRAE et al. (Supreme port an execution sale, and that by the sale the Court of Wisconsin. Nov. 22, 1898.) Appea! judyment is extinguished. Necessarily, if such from circuit court, Dane county. Action by be the case there can be no sale to extinguish Harry D. Latimer against Julius Andrae and