
    Alice A. Davidson et al., Executors, Resp’ts, v. Oliver A. Horn, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed January 1888.)
    
    1. Statute of limitations—Action upon judgment of a court not of record must be brought within six years—Code Civ. Pro., § 382, subd. 7.
    It is provided by Code Civil Procedure, section 382, subdivision 7, that an action upon a judgment or decree, rendered in a court not of record, except a decree, theretofore, rendered in a surrogate’s court of this state, must be brought within six years after the cause of action has accrued, and that the cause of action in such a case is deemed to have accrued when final judgment is rendered.
    g. Same—Word “action,” Code Civ. Pro., § 382, subd. 7, includes SPECIAL PROCEEDING—CODE ClV. PRO., § 414, SUBD. 4.
    By section 414, subdivision 4, in the same chapter as the section quoted, it is provided that the word “action” contained in this chapter is to be construed, when it may be necessaiy to do so, as including a special proceeding.
    3. Same—Proceedings supplementary to execution.
    
      Held, that a motion for the appointment of a receiver in proceedings supplementary to execution upon a judgment obtained in a justice’s court was a special proceeding taken upon the assumption that the plaintiff had such a judgment for its support. And that six years having elapsed since such judgment was obtained, the validity of the proceeding wasdependent upon whether the filing of a transcript of such judgment and its entry in the docket of the county clerk was sufficient to remove the bar of the statute of limitations.
    4. Same—Proceeding supplementary to execution cannot be brought upon justice’s judgment after six years from its entry.
    
      Held, that the right of the judgment-debtor to avail himself of the statute of limitations as a bar having become perfect before the transcript of the judgment was filed with the county clerk, could not be taken from him by such act on the part of the plaintiff.
    Appeal from an order of Steuben county judge, appointing receiver of defendant’s property in proceedings supplementary to the execution.
    Judgment was recovered in justices court July 15, 1879. Transcript was filed and judgment docketed in Steuben county clerk’s office, August 11, 1886. Execution having been returned unsatisfied this proceeding was taken. The defendant was examinedt and the plaintiff’s motion for the appointment of a receiver was opposed and granted.
    H. W. Sandford, for app’lt; James Durkin and D. M. Darrin, for resp’ts.
   Bradley, J.

The Statute of Limitations had furnished the defendant the right to bar a recovery upon the justices. judgment before the transcript was filed with the county-clerk. Code Civ. Pro., § 382, sub. 7.

There is no express statutory limitation of the time within which such a transcript may be filed and judgment docketed, but it does provide that when that is done it becomes a judgment of the county court. Id., § 3017. The policy of the statute, however, is to bar proceedings upon judgments of courts not of record after the expiration of six years from the time of rendition. And so far as such limitation may be applied as a bar, it is wholly statutory, and upon the statute only, such defense must rest. The Statute of Limitations does not have the effect to discharge the debt, but operates on the remedy merely. Waltermire v. Westover, 14 N. Y., 16. And although the plaintiff’s right of action, on the justice’s judgment had become barred by the statute, at the time the transcript was filed, so that the defendant may have defeated a recovery upon it, that situation did not deny to the plaintiffs the right to proceed in the manner adopted, and to make the judgment thus docketed effectual as that of the county court, unless the statute furnishes to the defendant the means of relief. The section first above mentioned, by its terms relates to actions only. But the word “action as there used is by a subsequent provision of the statute “ construed when it is necessary so to do, as including a special proceeding or any proceeding therein or in an action.’* Code Civ. Pro., § 414, sub. 4.

The question may therefore be treated for the purposes of this review as if it were presented in an action upon the judgment as such of the county court. This is a special proceeding taken upon the assumption that the plaintiff had such a judgment for its support. And the inquiry goes back to the act of filing the transcript and making the docket .entry to ascertain.whether that was effectual to remove the limitation bar which before then existed as against the justice’s judgment, because if it did have such effect the defendant’s objection was not well taken. The filing-of the transcript and docketing the judgment was a proceeding taken ex parte to charge the defendant and his property without his consent. While the statute does not. limit the time within which such a transcript may be filed and the judgment docketed by the clerk, it does not by its terms nor by necessary implication provide that it may be done after the expiration of six years from the time of the rendition of the judgment of the justice. The right of the judgment debtor to avail himself of the statute of limitations as a bar became perfect before the transcript was filed with the clerk. And that right was a vested- one which could not be defeated even by subsequent legislation. Rider v. Wilson’s Exrs., 41 N. J. L. R., 9 ; Girdner v. Stephens, 1 Heisk., 280, 2 Am. R., 700; Yancy v. Yancy, 5 Heisk., 353, 13 Am. R., 5; Bradford v. Shine’s Admr., 13 Fla., 393, 7 Am. R, 239; Rockport v. Walden, 341 N. H., 167, 20 Am. R., 131; Shriver v. Shriver, 86 N. Y., 580, 581. And it is difficult to see how the defendant could be divested of such right by the act of filing the transcript and docketing the judgment at the instance of the judgment creditor, inasmuch as the statute does not declare that it may be done after the time such right has accrued to the judgment debtor.

In view of the provision of section 414, before referred to, of the Code, no reason appears why such bar may not be effectually asserted in any proceeding taken upon the judgment, so docketed, in which the judgment debtor has an opportunity to appear and be heard. This view does not seem to have been considered in Rose v. Henry (37 Hun, 397). And because that case was treated by the plaintiffs as authority for causing the judgment to be docketed, and for the proceeding taken, and is not followed on this review, they should not be charged with costs.

The order appealed from should be reversed.

Barker, P. J., and Haight, J., concur.  