
    McCoy & James v. Cox.
    1. Judgment; in justice’s court: effect of filing transcript. Under section 3568 of the Code the filing of a transcript of judgment from a justice in the Circuit Court renders the judgment enforceable by execution for the period of twenty years from the date of such, filing. Day, J., and Adams, Ch. J., dissenting.
    
    
      Appeal from Keohult, District Oourt.
    
    Wednesday, October 20.
    A motion to set aside a sale of lands upon execution was sustained, and from this order plaintiff appeals. Tbe facts of tbe case appear in tbe opinion.
    
      Donnell dr Droohs, for appellants.
    No appearance for appellee.
   Beck, J.

On tbe 3d day of November, 1865, a certified transcript of a judgment in favor of plaintiffs, rendered on tbe same day against defendant by a justice of tbe peace, was filed in tbe office of tbe clerk of tbe District Court. On tbe 3d day of December, 1878, an execution was issued upon tbe judgment by tbe clerk of tbe District Court, and certain real estate was sold tbereon, and purchased by plaintiffs. A motion to set this sale aside was sustained by tbe District Court. Tbe amount in controversy being less than one hundred'dollars, tbe judge of tbe District Court certified tbe following question for determination by this court: “Can an execution issue from tbe District Court on a judgment of a justice of tbe peace after ten years from tbe date of its rendition, when a transcript of said judgment has been filed in said District Oourt on tbe date of tbe rendition of said judgment by said justice?” No other question is for consideration in this case. Tbe District Court held that tbe execution could not issue; that it was barred after the expiration, of ten years under Code, § 3569, which provides that execution upon judgments in justice’s court may not be issued after ten years from their dates.

The following sections of the Code determine the question before us.

“ Sec.(3567. The party obtaining a judgment in a justice’s court for more than ten dollars may cause a transcript thereof to be certified to the office of the clerk of the Circuit Court in the county.
“ Sec. 3568. The clerk shall forthwith file such transcript, and enter a memorandum thereof in his judgment docket, noting the time of filing the same, and from the time of such filing it shall be treated, in all respects as to its effect and mode of enforcement, as a judgment rendered in the Circuit Court as of hhat date, and no execution can thereafter be issued by the justice on that judgment.”

The language of Sec. 3568 is explicit. It expressly provides that the transcript shall be filed and entered in the judgment docket, and thenceforward “it shall be treated, in all respects as to its effect and manner of enforcement, as a judgment rendered in the Circuit Court of that date.”

The effect of a judgment in the Circuit Court is as follows:

1. It is a lien upon real estate for ten years.

2. It may be enforced for twenty years. Code, § § 3025, 2529, ¶ 6.

The manner of enforcement of such a judgment is by execution.

It follows that, as the judgment in question “is to be treated, in all respects as to its effect and manner of enforcement, as a judgment rendered in the Circuit Court,” an execution may issue thereon at any time within twenty years.

It was the view of the court below that the object of Code, § § 3567 and 3568, is to provide for the enforcement of judgments rendered by justices against real estate. That, doubtless, was one object, and the provisions give them such effect. But under the language of the statute they are to have the effect, in every respect, of judgments of the Circuit Court. The effect of judgments in the Circuit Court is to bind the defendants therein for twenty years, and to be enforceable during that time by execution.

In our opinion the judgment of the District Court is erroneous; it is, therefore,

Reversed.

Day, J.,

dissenting. — I cannot concur in the foregoing opinion. The error of the opinion, in my judgment, is in holding that it is an effect of a judgment in the Circuit Court that it may be enforced for twenty years. An effect is something produced or occasioned. A lien upon real estate is an effect of a judgment in the Circuit Court, because such a judgment occasions or produces such a lien. But that a judgment may be enforced for twenty years is not an effect of a judgment, but a property or quality of a judgment. It is a part of the definition of a judgment in the Circuit Court that it shall be susceptible of enforcement for twenty years. The effect of anything must be something apart and distinct from the thing itself. It is not possible that the effect of a thing should constitute a part of the thing itself, for, if so, the effect would constitute a part of the cause, and cause and effect would, in part, be the same.

It is to be observed that section 3568 of the Code does not provide that from the time of filing a transcript, and entering a memorandum thereof in the judgment docket, a judgment in a justice’s court shall become a judgment of the Circuit Court, nor even that it shall be treated as a judgment of the Circuit Court. It simply provides that in some respects it shall be treated as a judgment of the Circuit Court. It shall be treated, in all respects as to its effect and mode of enforcement, as a judgment of the Circuit Court. This implies that as to all other respects, except as to its effect and mode of enforcement, it shall not be treated as a judgment of the Circuit Court. The effect of a judgment in the Circuit Court is that it produces, occasions, or brings into existence, a lien upon real estate. The mode of enforcement of such judgment is by execution from the Circuit Court. When a transcript from a justice’s docket has been filed, and the proper memorandum entered, it ¡produces a like lien upon real estate, and it must be enforced by execution from the Circuit Court. The duration of the enforceable character of the judgment is not an effect, but a property, a quality, a part of the judgment itself, and is not affected by the filing of a transcript. In my opinion no execution could properly issue upon the judgment in question after the expiration of ten years from its original date. If the view of' the majority be correct, it follows that a transcript may be filed just before the exjfiration of ten years, and the enforceable quality of the judgment continues for twenty years longer, thus making it enforceable by execution Tor nearly ten years longer than if it had been originally rendered in the Circuit or District Court. I cannot believe that the statute in question was intended to have any such effect, or that a proper construction of it accomplishes such results. I think the question involved was properly determined by the, court below.

Adams, Oii. <T., concurs.in this dissent.  