Hayton v. Beason
Hayton v. Beason
Opinion of the Court
The opinion of the court was delivered by
— On March 28, 1894, the appellants recovered a judgment against the respondent in the superior court of Skagit county for the sum of $256.50 and costs of action. The judgment remaining unpaid, the appellants on the 27th of March, 1900, filed their motion in the superior court in which the judgment was rendered to revive and continue the lien of the same, and caused the clerk of the court to issue a notice^ citing the judgment debtor to appear and show cause why the motion should not be granted. On February 21, 1902, the
The act (2 Hill’s Code; §§162-163) permitting judgments to be revived by motion and notice, as originally enacted, did not limit the time within which proceedings therefor should be commenced; nor did it limit the time within which the notice must be served after filing the motion. With reference to the former the provision was that such proceedings might be commenced at the end of five years after the date of rendition of the judgment, and with reference to the latter, that “At any time after filing such motion, the party may cause notice to be served on the judgment debtor in like manner and with like effect as a summons.” In 1891 (Session Laws 1891, p. 165) the legislature amended the act by providing that no judgment should be revived or continued unless proceedings for such revival or continuance should be commenced within six years after the date of its rendition, but did not define what should be deemed a commencement of the action. By reference to' the dates above given, it will be noticed that the motion to revive was filed and the notice to the judgment debtor issued by the clerk on the last day of the six-year period, while the service of the notice was had on the judgment debtor nearly two years thereafter. The question here is, therefore, was the proceeding commenced by the filing of the motion to revive the judgment ? In our opinion, it was not, no matter whether the
The appellants argue, however, that the act itself excuses the delay, or, perhaps- better, especially sanctions it in that it provides that the notice may be served at any time after the motion to revive is filed. But the question is not, was the delay so unreasonable as to cause a proceeding properly commenced to lapse ? but is, rather, was the proceeding ever properly commenced? The statute relied upon offers no solution for this question. It might be that a delay between the filing of the motion and the service of the notice, longer than is allowed by the general statutes between the filing of the complaint and the service of the summons, would not be fatal to- the proceedings, if both occurred before the statute of limitations had run; but as the law requires that the proceedings be commenced within a given time, and further requires that service of notice be had in order to- commence the proceedings, the service must precede the expiration of the given time, if the bar of time is to be escaped.
The judgment is affirmed.
Andebs, Mount and Dunbab, JJ., concur.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.