Feeney v. Hinckley

HENSHAW, J.

— The action was brought to recover an unpaid balance due upon a judgment. It was commenced more than five years and less than six years after the entry of the judgment. This fact appearing upon the face of the complaint, defendant urged by demurrer that the cause of action was barred by section 336 of the Code of Civil Procedure, which provides that an action upon a judgment or decree must be brought within five years. The court sustained the demurrer, and entered judgment accordingly, from which judgment this appeal is prosecuted. At the time of the entry of the judgment sued upon, the law permitted one year during which the losing party might prosecute his appeal. Upon this state of facts the question presented is, When does the five-years’ statute of limitations barring action upon a judgment commence to run, —from the date of the entry of the judgment, or from the date when the judgment has become a final determination of the controverted matters between the parties litigant? It is apparent at once that the statute requires construction, and that something must he read into it by way of interpretation. If the five years commenced to run from the date of entry, the demur

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rer was properly sustained. If, however, it commenced to run only when the judgment became a finality, when the rights of the parties were fixed by it, when it was admissible in evidence for or against either of them,—when, in short, a cause of action upon it had accrued,—then, clearly, in case an appeal from the judgment be taken, the five years cannot be said to have commenced to run until final determination following such appeal, or in the event that no appeal be taken, then only when the time within which such an appeal might be taken has fully elapsed.

Section 312 of the Code of Civil Procedure declares: “ Civil actions can only be commenced within the periods prescribed in this title,

after the cause of action shall have accrued,

except where, in special cases, a different limitation is prescribed by statute.” “A judgment is the final determination of the parties in an action or proceeding.” (Code Civ. Proc., sec. 577.) “An action is deemed to be pending from the time of its commencement until its final determination upon appeal, or until the time for appeal has passed, unless the judgment is sooner satisfied.” (Code Civ. Proc., sec. 1049.) An action will not lie upon a judgment until it has become final. Until that time has arrived, ho cause of action upon the judgment has accrued.