Summary
holding that successive suits on an underlying judgment stopped the running of the statute of limitations
Summary of this case from Smith v. SmithOpinion
No. 40535.
October 7, 1957.
1. Judgment — actions on domestic judgments — extending judgment lien.
The effective method to extend a judgment lien is by filing another suit upon the judgment before expiration of seven years from date of the rendition thereof. Sec. 733, Code 1942.
2. Limitation of Actions — actions on successive judgments effectively stopped running of statute.
Where plaintiff brought suit and obtained process before lapse of seven years from date of rendition of previous successive judgments entered against defendants, such institutions of suits effectively stopped the running of the statute of limitations, notwithstanding the fact that more than seven years elapsed beween the entry of such successive judgments. Sec. 733, Code 1942.
Headnotes as approved by Lee, J.
APPEAL from the Circuit Court of Leflore County; ARTHUR JORDAN, Judge.
J.G. Colson, Greenwood, for appellant.
I. The action brought by Mrs. Wright September 18, 1956, to keep the judgment alive is barred by Section 733, Mississippi Code 1942. Buckner v. Pipes, 56 Miss. 366; Stith v. Parham, 57 Miss. 289; Locke v. Brady, 30 Miss. 21; Street v. Smith, 85 Miss. 359, 37 So. 837; Buckley v. F.L. Riley Mercantile Co., 155 Miss. 150, 124 So. 267; Limitations on Actions on Judgments, Code 1822 (Hutchinson's); Art. VIII Chap. 57, Code 1857; Sec. 2153, Code 1871; Secs. 1741, 2674, 2680, Code 1880; Secs. 2743, 2750, Code 1892; Sec. 2796, Code 1906; Secs. 733, 735, 875, 1560, Code 1942; 24 R.C.L., Scire Facias, Sec. 25 p. 684.
II. The Court below erred in overruling the motion of the defendant for a new trial and denying defendant recovery on his counterclaim.
Bell McBee, Greenwood, for appellee.
I. The action brought by Mrs. Daisy P. Wright begun September 18, 1956, was not barred by Section 733, Mississippi Code of 1942, and the Court did not err in striking the plea in bar of the defendant. Schwartz Bros. Co. v. Stafford, 166 Miss. 397, 148 So. 794; Jones v. McCormick, 145 Miss. 566, 110 So. 591; Simpson v. Boykin, 118 Miss. 701, 79 So. 852; Beck v. Tucker, 147 Miss. 401, 113 So. 211; Street v. Smith, 85 Miss. 359, 37 So. 834; Sec. 733, Code 1942; 2 C.J.S. Sec. 859 p. 432; 50 C.J.S., Sec. 851 p. 423; 54 C.J.S., Sec. 261 p. 290; 36 Words and Phrases pp. 872-75.
William Morgan Kimbrough appealed from a judgment of the Circuit court rendered against him on November 13, 1956, in favor of Mrs. Daisy P. Wright.
The record disclosed the following facts: A judgment had been rendered in favor of Mrs. Wright against Kimbrough on May 25, 1942. Thereafter, on March 22, 1949, less than 7 years from the date of the original judgment, Mrs. Wright filed a suit, founded on the 1942 judgment, and on November 9, 1949, judgment was rendered thereon. Again, before the lapse of 7 years, in fact on September 18, 1956, she filed a suit, founded on the 1949 judgment, and judgment thereon was rendered in her favor on November 13, 1956.
Appellant says that 7 years 5 months and 14 days elapsed between the entry of the 1942 and the 1949 judgments, and that 7 years and 4 days likewise elapsed between the entry of the 1949 and the 1956 judgments. He contends that the lien of the 1942 judgment expired on May 25, 1949, 7 years from the date of its original entry, and that likewise the 1949 judgment expired on May 25, 1956, 7 years from the date of the original entry, and that his plea of the statute of limitations should have been sustained.
Section 733, Code of 1942, provides as follows:
"All actions founded on any judgment or decree rendered by any court of record in this state, shall be brought within seven years next after the rendition of such judgment or decree, and not after; and an execution shall not issue on any judgment or decree after seven years from the date of the judgment or decree."
(Hn 1) It is clear from the above statute that the time within which the action must be brought is 7 years "next after the rendition of such judgment or decree, and not after". See Street v. Smith, 85 Miss. 359, 37 So. 837, where it is pointed out that the effective method to extend the judgment lien is by filing another suit upon the judgment before the expiration of 7 years from the date of the renditon thereof. (Hn 2) In each instance, Mrs. Wright brought her suits and obtained process before the lapse of 7 years from the dates of rendition of the judgments. Such institution of suits effectively stopped the running of the statutes of limitations. Swalm v. Sauls, 141 Miss. 515, 106 So. 775; Beck v. Tucker, 147 Miss. 401, 113 So. 209.
The plea was without merit and the judgment of the trial court is affirmed.
Affirmed.
Roberds, P.J., and Arrington, Ethridge and Gillespie, JJ., concur.