Mason v. Cronise

Field, C. J. delivered the opinion of the Court—Norton, J. concurring. This action is brought to recover a balance alleged to be due upon a judgment of the District Court recovered in April, 1853. It was commenced in February, 1862, nearly nine years subsequent to the entry of the judgment. The defense rests upon the seventeenth section of the Statute of Limitations, which provides that “ an action upon a judgment or decree of any Court of the United States, or of any State or territory within the United States,” can only be commenced within five years after the cause of action has accrued, and is presented by the demurrer. The defense may be thus presented in our practice, where it appears from the complaint that the period of limitation has elapsed since the plaintiff possessed the right of action, and no facts are alleged taking the demand from the operation of the statute. (Smith v. Richmond, 19 Cal. 476; Barringer v. Warden, 12 Id. 311.) In the present case the complaint only alleges the recovery of the judgment, the application of certain proceeds to its payment, and that the balance still remains due and unpaid, with interest thereon. Ho facts are stated to obviate the running of the statute, if the section cited applies to actions upon domestic judgments. It is contended by the respondent that the section has no such application, and so the. Court below held.

[218]In this respect we are of opinion that the Court erred. The section does not, in terms, except judgments recovered within the State; but, on the contrary, its language embraces the judgments and decrees of any Court “ of any State or territory within the United States.” It would seem, according to the natural import of the words used, that there could be no question as to the application of the section to domestic judgments. The argument in support of the opposite view is, that such an application produces an inconsistency between the section and the two hundred and fourteenth section of the Practice Act, which authorizes an execution to be issued upon a judgment after the lapse of five years, upon leave of the Court. It leads to the anomaly, says the Court below, of the Legislature determining that a judgment shall not be a cause of action after the lapse of five years, and at the same time allowing an execution to issue upon it after that period, upon the oath of the party. And this anomaly is supposed to be increased, from the fact that the section of the existing law was taken, substantially, from a section in the Practice Act of 1850, which was passed on the same day with the Statute of Limitations.