Watson v. Keystone Iron-works Co.

Citations

• 70 Kan. 43
• 74 P. 269
• 1904 Kan. LEXIS 3

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Judgments — Dormancy — Statute Construed. Section 445 of the code (Gen. Stat. 1901, § 4895), which provides that if an execution be not sued out within five years from the date of the judgment it shall become dormant, has reference to general executions against the property of the debtor, and not to special executions provided for by section 4994, General Statutes of 1901.</p> <p>2. - Statute Does Not Apply to a Decree for the Sale of Specific Real Property. Section 4895 of the General Statutes of 1901, providing that when a judgment becomes dormant it shall cease to operate as a lien on the estate of a judgment debtor, ' does not apply to a decree for the sale of specific real property.</p> <p>3. - Case Overruled. The case of The State v. McArtkar, 5 Kan. 280, overruled. [ See page 61, post.]</p> <p>SYLLABUS BY THE COURT.</p> <p>1. Judgments — Dormancy—Special Executions. A decree was entered foreclosing a mortgage executed by A. to plaintiff, and also foreclosing several liens for material furnished to A. by parties who were brought in as defendants in the suit. In the decree, K., one of the defendants, was given a judgment against A., its codefendant, as principal, and W., another codefendant, as surety, for a certain sum of money due from A. The decree marshaled the liens and ordered the real estate charged to be sold. Six special executions were sued out by the plaintiff and the property was finally sold, leaving a deficiency due to K. on its judgment against A., as principal, and W., as surety. In none of these executions or orders of sale was there any mention of the money judgment in favor of K. and against W. More than five years after the entry of the decree a general execution was issued at the instance of K. against A., as principal, and W., as surety. Held, that the issuance of the special executions did not have the effect of preventing the judgment in favor of K. and against W. from becoming dormant.</p> <p>2. - Sta