
    Graham v. Simon, Admr.
    
      Actions on domestic judgment — Statute of limitations is twenty-one years.
    
    An action upon a judgment of a court of this state may be brought at any time within twenty-one years. Tyler’s Executors v. Winslow, is Ohio St., 364, followed; Doyle v. West, 60 Ohio St., 438, distinguished.
    (No. 10047
    Decided February 26, 1907.)
    Error to the Circuit Court of Gallia County.
    The question upon which the case is thought worthy of report arises upon the following statement:
    On the 1st of December, 1903, the defendant in error filed a petition in the Court of Common Pleas of Gallia County, alleging the plaintiff’s appointment and qualification as administrator de bonis non of Charles Simon, deceased, and further alleging as ground for recovery a judgment which his predecessor in representation had recovered against Graham on the 8th day of September, 1887, in the Court of Common Pleas of Gallia County, which judgment remained wholly unpaid. Contemporaneously with the petition he filed an affidavit for attachment on the ground of the non-residence of the defendant. No execution had ever been issued upon said judgment nor had any proceeding been taken to revive it. Answering said petition, Graham pleaded, among other things, that said cause of action, if any, is barred by the statute of limitations. In the court of common pleas there was a judgment for the plaintiff, and it was affirmed by the circuit court.
    
      
      Mr. Willard, B. Stier and Mr. Robert M. Switzer, for plaintiff in error.
    The action was barred by the statute of limitations.
    The legislature intended to provide a limitation for “every cause of action.”
    Sections 4976, 4979, 4980, 4985 and 5380, Revised Statutes.
    A limitation is therefore provided by the foregoing sections, for “every cause of action,” without an exception, but as judgments at law are not specifically mentioned in terms, the query is, Which section applies to actions upon judgments?
    The Legislature has prescribed an easy method for a litigant to keep his judgment alive and binding forever, and a subsisting lien against the property of the debtor, by the issuing of an execution thereon every five years. If the action becomes dormant, and no execution is issued, he has the further right by Section 5367 to revive it, and the limitation fixed by Section 5368 for revivor is twenty-one years. If a party dies it may be revived in the name of his successor in trust or legal representatives. (Sec. 5154-) If a personal representative of a deceased person be removed, or die, it may likewise be revived in the name of the heirs or successors in trust, and the limitation fixed for such revivor is one year, unless by consent. (Secs. 5148-5157.)
    We believe that these sections of the statute are not intended to be cumulative, but are designed to be exclusive, fixing the method of procedure when a litigant is careless and allows his judgment to become dormant. Smalley v. Bowling, 64 Kan., 818.
    By a line of old decisions in this state it has been held that a “judgment” is never barred, because it is not specifically specified as an action to be limited. That an action could always be maintained upon a judgment, although an execution would be set aside if issued. Those decisions, however, were controlled by the condition of the statutes existing at that time; but as time progressed and those sections of the statutes were changed, different limitations were placed upon the same action, so that now the former decisions could have no controlling force.
    We claim the decision in Tyler’s Exrs. v. Winslow, 15 Ohio St., 364, is not applicable to our present statutes, and has been overruled in Doyle v. West, 60 Ohio St., 438.
    At the time the Tyler case was decided, Section 5367 did not contain a provision limiting “debts of record,” as causes of action to be revived only within twenty-one years, but it did when Doyle v. West was decided by this court. Section 4985 at that time had a limitation of four years, while at the time Doyle v. West was decided it was ten years.
    The Tyler case was a suit upon a judgment, while Doyle v. West was an action upon a “debt of record.”
    Four points were settled by this court in the Doyle-West case, and which overrule the same points decided adversely in the Tyler case.
    1. That the “rendition of a judgment” is the “accruing of a cause of action.”
    2. That the legislature intended to provide a limitation for “all actions” without exception.
    3. That Section 4985, providing that all other actions not specifically mentioned should be barred in “four” years, controlled the minds of the court in the Tyler case. That it is without application to our present "ten” years’ statute. ■
    4. That ten years is long enough for a debt of record, and should be for a judgment.
    
      Mr. Hollis C. Johnston; Mr. T. E. Bradbury and Mr. E. D. Davis, for defendants .in error.
    We think the decision in the case of Tyler’s Executors v. Winslow, 15 Ohio St., 364, is conclusive of this case, until it be overruled by this court. It will be noted that the question in Doyle v. West, 60 Ohio St., 438, arose over a “debt of record,” and not upon a dormant judgment, and this fact is especially noted in the opinion in the latter case.
    Counsel for plaintiff in error are therefore entirely wrong when they say that the Doyle case is decisive of the matter in their favor. The fact of the matter is that it is decisive against them, because in the body of the opinion it is said: ■
    “There is no disposition to overrule this case; but if persuaded that it was not rightly decided, there is more reason for confining its application to cases identical with it in facts.”
    The case at bar is identical with the case of Tyler’s Executors, and under the language of the Doyle case, it must be considered conclusive, and that there is no statute of limitations against a judgment, other than the time requisite at common law to raise a presumption of payment, which is twenty-one years.
   Shauck, C. J.

That the judgment whose reversal is sought in this, proceeding is in' accordance with that pronounced by this court in Tyler’s Executors v. Winslow, 15 Ohio St., 364, is entirely clear. In that case two propositions were established: That although a judgment of a court of this state is a good ground of action, its rendition is not the accruing of a cause of action within the meaning of the act of February 18, 1831; and that, therefore, said act of limitation does not apply to an action founded upon a judgment of a court of. this state. By that decision the question involved was put to a rest which appears to have remained undisturbed until the announcement of Doyle v. West, 60 Ohio St., 438. The able counsel who presented the latter case to this court did not understand that they were disturbing the general repose of that question, nor did they in any wise challenge the soundness of the former decision. The case which they presented was broadly distinguished by the fact that it was an action not founded upon a judgment.- It was an action to recover the portion of a debt which remained unpaid after the foreclosure of a mortgage by which it was secured and after the application of the proceeds of the sale of the mortgaged premises. In the suit to foreclose no personal judgment had been sought in the petition, nor was ány rendéred, nor was there even an award of execution for the satisfaction of any balance which might remain unpaid after applying the proceeds of sale. The action was, therefore, for the recovery of a balance of the amount which the court had found to be the indebtedness secured by the mortgage, the finding having been made as the predicate of the decree of foreclosure to subject the mortgaged property, and not affording to the creditor any executory remedy against the general property of the debtor. That finding, though lacking essential characteristics of a judgment, was held to,be a debt evidenced by record and a proper foundation for an action, but subject to a limitation of ten years or fifteen years, the case not requiring a more precise conclusion upon that question. Our judgment in the case was placed upon the nature of the finding and its deficiencies in the characteristics of a judgment. This clearly appears from the syllabus, whose function in these reports is well known.

It is true that in the course of the opinion in the later case some doubts were expressed as to the correctness of the conclusion reached in Tyler’s Executors v. Winslow, but they do not appear to have been shared by the concurring members of the court, nor did they enter into the decision. It is also true that in that opinion encouragement is given to the proposition urged by counsel for the plaintiff in error in the present case: that differences between the present statute limiting'actions and that considered in Tyler’s Executors v. Winslow are material to the question before us. No difference of that character appears. The statutes afford equal foundation for the proposition there affirmed and distinctly stated that the rendition of a judgment is not the accrual of a cause of action. That proposition being accepted, the ultimate conclusion reached by this court in that case and by the courts below in the present case is inevitable. We perceive no such defect in the reasoning by which that proposition was supported as would justify us in disturbing a conclusion in which the legislature has acquiesced for more than forty years. At most, adherence to that conclusion imputes to the legislature only the intention that an action to recover upon a judgment may be brought at any time within twenty-one years, which is the limitation expressly imposed by Section 5368 of the Revised Statutes upon an action to revive a judgment.

Judgment affirmed.

Price, Crew, Summers, Spear and Davis, JJ., concur.  