Opinion
July, 1905.
E.D. Northrup, for the appellant.
W.G. Laidlaw and A.M. Laidlaw, for the respondent.
The judgment should be reversed on questions of law and a new trial ordered, with costs to the appellant to abide event.
The action was brought to recover the amount of a judgment recovered in Justice's Court. The defense was the Statute of Limitations. The question involved is, what Statute of Limitations is applicable.
The justice's judgment was rendered April 8, 1892.
The justice's transcript was given April 9, 1892.
The transcript was filed in the county clerk's office April 25, 1892.
This action was commenced August 5, 1902.
So that full ten years elapsed after the rendition of the judgment and the filing of the transcript before this action was commenced.
Prior to 1894 the limitation for actions upon judgments rendered by Justices' Courts was six years (Code Civ. Proc. [Laws of 1876, chap. 448], § 382, subd. 7, as amd. by Laws of 1877, chap. 416; Dieffenbach v. Roch, 112 N.Y. 621.)
By chapter 307 of the Laws of 1894, section 376 and subdivision 7 of section 382 of the Code of Civil Procedure (as amd. supra), were amended so as to change the limitation in cases where transcripts were filed pursuant to section 3017 of that Code, from six to twenty years, and the latter section was also so amended as to limit the time for the filing of a transcript to six years from the date of rendition of the judgment. (See Laws of 1880, chap. 178.) It will be recollected that the transcript in this case was filed in 1892, and none has been filed since the amendments of 1894 above referred to.
The question is whether the amendments to section 376 and subdivision 7 of section 382 cover this case, where the transcript had already been filed when the amendments were enacted. The language imported into section 376 by the amendment of 1894 is a judgment " hereafter docketed pursuant to the provisions of section thirty hundred and seventeen of this act," and the language imported into subdivision 7 of section 382, is "except where a transcript shall be filed pursuant to section thirty hundred and seventeen of this act." These words all point to the future and not to the past, and cannot well be construed so as to cover judgments which had already been docketed under section 3017.
Section 9 of the Statutory Construction Law (Laws of 1892, chap. 677) provides that the term hereafter when used in any provision of a statute relates to the time such provision takes effect. Moreover, the language used in section 376 of the Code of Civil Procedure, immediately in connection with the language of the amendment, shows the intent to use this word in its actual and restricted sense. With reference to surrogate's judgments the word heretofore is used, and with reference to judgments of courts of record in the United States and elsewhere, the words heretofore or hereafter are used. So that the real meaning of these words was kept in mind, and only the word hereafter was used with reference to justice's judgments.
We must assume, therefore, that only future and not past judgments were intended to be covered by the amendment of 1894. This being so, the plaintiff's judgment was not preserved by the amendment. The limitation as to it was still six years under subdivision 7 of section 382 of the Code of Civil Procedure, as first cited in the opinion, and no recovery could be had thereon in this action.
The judgment should, therefore, be reversed, as already suggested.
All concurred, except McLENNAN, P.J., who dissented.
Judgment reversed and new trial ordered, with costs to the appellant to abide event, upon questions of law only, the facts having been examined and no error found therein.