There are but two points herein:
First. That as execution could have been issued on the judgment, no action could be sustained thereon; or, in other words: that an action of debt will not lie on a judgment if an execution can be issued thereon.
Second. That no action at law can be sustained on a lost or destroyed judgment.
That an action can be maintained on a domestic judgment is a proposition well settled by the Courts of England and of almost every State in the Union. Howard v. Howard, 15 Mass. R. 197; 1 Chitty's Pleadings, 103, 104, 354, 355; 2 Ibid. 232-233, and notes; Post et al. v. Neafie, 3 Caine's R. 22; 6 Wheeler Am. Com. Law, 268 and seq.; 1 Cowen's Treatise, 47; 1 Hill R. 645; Storer v. Storer, 6 Mass. R. 390; 7 Cranch R. 481; 11 Condensed Rep. (S. C.) 578; 19 Johnson, 162; 15 Ib. 233; 1 Comyn's Digest, " Debt," --a--2; Greathouse v. Smith, 3 Scammon, 541.
Conceiving the question as to right of action on a judgment to be well settled by the foregoing authorities, the next question is: When, or at what time shall the action be commenced?
We hold that an action of debt may be brought on a domestic judgment immediately on the recovery thereof. Dennison v. Williams, 4 Conn. 402; Dundo v. Doll, 2 John. 87; 6 John. 98; 16 John. 66; Hale v. Angell, 20 John. 342; 6 Cowen, 695; Clark v. Goodwin, 14 Mass. 237; Greathouse v. Smith, 3 Scammon, 541; Smith v. Mumford, 9 Cowen, 26; Church v. Cole, 1 Hill, 645.
In the case of Church v. Cole, it is expressly decided that an action will lie on a judgment, although time for issuance of execution has not yet elapsed. And in 3 Scammon, 541, the same question raised and distinctly decided that an action may be maintained on a judgment although the judgment creditors might issue an execution thereon.
By common law, an action could be maintained within a year and a day on a domestic judgment, that being the lifeof a judgment without issuance of execution. 1 Comyn's Digest, Debt--a--2.
By our statute the time is extended from that limitation to five years, and judgment has its life for five years without issuance of execution. Wood's Digest, 195, art. 948.
The next proposition is, that no action can be sustained on a lost or destroyed judgment.
We cannot perceive the difference in maintaining an action upon a judgment on a record undestroyed, and an action on a judgment on a record destroyed. The question is more as to admissibility of parol testimony to prove the contents of the record.
Numerous authorities can be cited on this point, but the following will be found sufficient: Jackson ex dem. Taylor v. Cullum, 2 Blackford, 228; Stockbridge v. West Stockbridge, 12 Mass. 400; 1 Greenleaf on Evidence, sec. 509, note 5; Nims v. Johnson, 7 Cal. 110.
The testimony in this cause shows most clearly and conclusively the destruction of the entire record; nay, it is even admitted by the parties, and in this it differs from the case of Nims v. Johnson, a portion of the record therein being in existence. In that action they failed to show the loss, as a foundation forthe introduction of secondary evidence as to contents; in this cause, the loss is satisfactorily proven and admitted.
From the above authorities the conclusion is irresistible, that an action of debt may be maintained on a domestic judgment at any time within its life, and that if the record of the judgment sued upon be lost or destroyed, then that its contents may be proved by parol evidence.
JUDGES: Baldwin, J., delivered the opinion of the Court. Terry, C. J. concurring.
OPINION
BALDWIN, Judge
Plaintiff recovered a judgment in the District Court of Nevada county, in October, 1854, for a sum of money. The judgment was in an equitable suit brought to dissolve a copartnership and settle the firm accounts, and for a decree for the balance due. The records of Nevada were consumed by fire before the institution of this suit, and the papers and minutes of the Court evidencing this judgment destroyed. An action at law is now brought to recover the amount of this judgment or decree. Several questions are made:
1. That suit cannot be maintained in this State on a domestic judgment. At common law, actions could be so maintained. (1 Ch. Pl. 103-4.) There is nothing in our statute which divests the right; and the policy and inconvenience, suggested by the appellant, applied as well in England as here. The chief argument is, that there is no necessity for a right of action on a judgment, inasmuch as execution can be issued to enforce the judgment already obtained, and no better or higher right or advantage is given to the subsequent judgment. But this is not true in fact, as in many cases it may be of advantage to obtain another judgment in order to save or prolong the lien; and in this case the advantage of having record evidence of the judgment is sufficiently perceptible. The argument that a defendant may be vexed by repeated judgments on the same cause of action, is answered by the suggestion that an effectual remedy to the party against this annoyance is the payment of the debt. 2. It is also argued that the destruction of the book containing the judgment is the destruction of the judgment itself; so that the primary evidence of the judgment being removed, no other proof of it is admissible. We think that this position is alike indefensible in reason and on authority.
3. The last objection is, that no action can be maintained at law upon a decree in equity for a specific sum of money. The action in the case before us may be considered to be in debt, or as an action in the nature of the action of debt, under the old system. This action was proper whenever a sum liquidated and made definite by contract or judgment was recoverable, and we are not able to perceive why a recovery in equity for a certain and ascertained amount is not as legitimate a basis for action as a judgment at law. Some of the most respectable Courts in the Union have so adjudged, and we think properly. See 15 Mass. 196, and other cases cited therein.
The judgment is affirmed.