Jacobs v. Sprague

PATROSSO, J.

This action was filed November 14, 1952, upon a judgment obtained by plaintiff’s assignor against defendant, in the Circuit Court of the State of Oregon, for the County of Multnomah, and from a judgment in favor of plaintiff both parties appeal. The judgment sued upon was rendered April 27, 1937, and under the applicable Oregon law action thereon would be barred 10 years thereafter. However, pursuant to the provisions of an Oregon statute hereafter referred to, the Oregon court by which the judgment was rendered, on April 4, 1949, made an order that the judgment be renewed and remain in full force and effect for a period of 10 years from the date of the order.

It is in effect conceded that but for the order last mentioned this action was barred by our statute of limitations, which was unsuccessfully pleaded by defendant. The plaintiff, however, contends that the order renewing the judgment is in effect a new judgment upon which the statute of limitations begins to run from its rendition, while defendant asserts that the order of April 4,1949, is not a new judgment, but a continuation of the original judgment.

The authorities are not harmonious upon the question as to whether proceedings for renewal of a judgment by motion or the equivalent of the common law writ of

scire facias

constitute a new action or a mere continuation of the old, and hence whether the order of revival constitutes a new judgment, as a result of which the statute of limitations commences to run anew from the date of the order of renewal. (See 50 C.J.S., p. 447, § 871(2).) The greater weight of authority and the modern view, however, appear to be that such proceedings are but a continuation of the original suit. (49 C.J.S., p. 1005, §548(a); anno., 36 A.L.R.2d 575, et seq.; anno., 144 A.L.R. 408, et seq.) The adoption of the latter view seems to have been prompted, in some measure at least, by the decision of the Supreme Court of the United

[887]

States in

Owens

v.

McCloskey

(1896), 161 U.S. 642 [16 S.Ct. 693, 40 L.Ed. 837], wherein it was held that if a revival of a judgment by