# Brown v. Wuskoff > Indiana Supreme Court · January 10, 1889 · 118 Ind. 569 URL: https://www.frixlaw.com/law-library/cases/7049780 ## Case - **Full name:** Brown v. Wuskoff - **Court:** Indiana Supreme Court - **Decided:** January 10, 1889 - **Citations:** 118 Ind. 569; 19 N.E. 463; 1889 Ind. LEXIS 566 - **Precedential status:** Published - **Opinion:** On rehearing by Olds - **Judges:** Olds - **Cited by:** 14 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7049780 ## Opinion text On Petition for a Rehearing. Olds, J. It is very earnestly contended by counsel that this case was wrongly decided, and that an unwarranted construction was placed upon the statute declaring in what manner and to what extent judgments rendered before justices of the peace shall be liens upon real estate. Some authorities are cited which it is contended are in conflict with the original opinion. It is asserted that the case of Rand v. Garner, 75 Iowa, 311 , is in direct conflict with the decision in this case. *575 An examination of that caso will disclose the fact that it is not in conflict with what we decided in this, and that the questions presented are not at all similar, the statutes under consideration being entirely different. The Iowa statute declaring the manner and extent of the liens of judgments rendered before justices of the peace upon real estate, is as follows: • Section 3568. “ The clerk shall forthwith file such transcript and enteí 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 that date; and no execution can thereafter be issued by the justice on the judgment.” The court in that case very properly says of that statute : “ Under that provision we think the judgment has all the force and effect of a judgment rendered by the circuit court as of the date of the filing of the transcript.” The Iowa statute merges the judg ment before the justice into a judgment in the circuit court; it cancels the justice’s judgment and creates a new judgment in the circuit court. But the statute in this State differs very materially from the Iowa statute. It declares that judgments of the circuit court shall be a lien for the period of ten years from the rendition thereof, and no longer. After providing for the procuring, filing, recording and docketing of a judgment rendered before a justice, the statute declares that “ The judgment set forth in the transcript shall be a lien upon the real property of the defendant within the county, to the same extent as judgments of the court, from the time of filing the transcript.” Section 614 provides how executions shall be obtained on such judgment. It requires 'that an execution shall be issued by the justice, and if it be returned endorsed that no goods or chattels could be found sufficient to satisfy the judgment, or a part thereof, upon a certificate of such fact being filed with the clerk and recorded by him, and upon affidavit being *576 filed that the judgment is unpaid in whole or in part, stating-the amount due, an execution shall issue on the judgment.. The filing of the transcript in the clerk’s office does not affect, the validity of the judgment rendered before the justice; execution may still be issued upon it, and it may be collected, the same as if no transcript had been filed. The statute declaring that a judgment rendered before a-justice shall be a lien on real property does not stipulate that it shall be a lien for ten years from the time of the filing • or recording of the transcript, but that it shall be a lien to the ■ same extent as judgments of the court. And the word “ extent ” must apply as well to the time of its duration as to the character of the lien, and we give full force to the words-of the statute when we say the duration of the lien shall be-for ten years from the date of the rendition of the judgment, for that is the duration of the lien of a judgment rendered in the circuit court, as it is declared by statute it shall-be a lien for ten years and no longer. The construction we place upon the statute is, that a judgment rendered before a justice shall be a lien from the time the transcript is filed, recorded and docketed, to the end of ten years from the rendition of the judgment. If we transpose the words of the statute to read: “ From the time of filing the transcript, the-judgment set forth in the transcript shall be a lien upon the real property of the defendant within the county, to the same extent as judgments of the court,” it would hardly be contended, we think, that it could be construed to create a lien, for ten years from the filing of the transcript; but when-thus transposed it seems plain that the word “ extent,” as • applied to the duration of the lien, should relate to the time of the rendition of the judgment, corresponding to the time when the limitation commences to run against judgments of the circuit court, and the words mean the same, whether they are transposed or read as written in the statute. Indeed, this • is the only construction that can be placed upon this section of the statute and give force to the words. If, as contended *577 by counsel, the lien extends ten years from the filing of the transcript, a transcript might be filed at the end of nineteen years from the date of the rendition of the judgment before the justice, and after the expiration of twenty years the judgment would be barred. And if, during the twetity years, no execution had been issued and returned, and a certificate filed in the clerk’s office, as required, no execution could issue after that date, as a judgment can not be revived after twenty years (Strong v. State, ex rel., 57 Ind. 428 ), and the judgment lien could not be enforced by execution. It is evident to us that it was not contemplated to create a lien that could not be enforced by execution in the ordinary way, or to give validity to judgments rendered before justices for a greater-length of time than to judgments of the circuit court. After the expiration of twenty years the judgment could not be enforced, and a judgment which can not be enforced against property is not a lien upon property. Lamb v. Shays, 14 Iowa, 567 ; Stadler v. Allen, 44 Iowa, 198 . To extend »the lien ten years from the date of filing the transcript, would be creating or attempting to create a lien without any means of enforcing it. Judgment liens are created by statute and have only such validity as is given them by statute, and do not extend beyond the time fixed. The provision for the filing of a transcript and for an execution to be issued thereon by the clerk of the circuit court, is but adding additional force to judgments rendered before justices, and providing an additional method for their collection. We are also referred by counsel to the case of Waltermire v. Westover, 14 N. Y. 16 , which it is most seriously urged is in direct opposition to our decision in this case. The question decided in that case is not at all like the one in this. As appears from the case, the statute of New York provides that the lien of a judgment of the common pleas court ceases, as against purchasers in good faith and subsequent incumbrancers, at the end of ten years from the time of docketing, but continues *578 as against the defendant himself until the statutory presumption of payment arises, at the end of twenty years; and in that case a judgment was rendered before a justice July 25th, 1837, and on July 27th, 1837, a transcript was filed and docketed in the office of the clerk. On the 22d of June, 1843, the clerk issued an execution on the judgment, and delivered it to the sheriff on the ,10th day of July, 1843, and on the 12th day of July, 1844, the sherifi} by virtue of the execution, sold the real estate in question. It was provided by statute that a justice’s judgment, docketed by a county clerk, “ shall be a lien on the real estate of the defendant within the county, in the same manner and with the like effect as if such judgment had been in the court of common pleas.” If you give like force and effect to the words “ same effect,” in the New York statute, that we have given to the words “ same extent,” it would extend the lien ten years from the date of the docketing of the justice’s judgment, as the New York statute extends the lien of a judgment of the court of common pleas ten years from the date of docketing. But our statute is entirely different, as it extends the lien ten years from the date of the rendition of the judgment. But that question is not decided in the case cited, as only about seven years had expired from the rendition of the justice’s judgment to the time of the sale. The statute in that State declared that all actions upon justice’s judgments “ shall be commenced within six years next after the cause of such action accrued,” and the question for decision was as to whether that provision annihilated the lien at the. end of six years, and the court held that, as the six years’ statute was in terms confined to the remedy by action, it did not operate to annihilate the remedy by execution. It does not appear what the mode of issuing execution was under the New York statute, but it in no way appears that any execution was required to be issued by the justice and a certificate and affidavit filed with the clerk to obtain an execution, as are required in this State. The clerk issued an execution as authorized, and the *579 law was no doubt similar to that of the State of Iowa, hereinbefore set out. Filed April 26, 1889. This same construction has been placed upon this statute by this court in two other cases : Martin v. Prather, 82 Ind. 535 , and Yeager v. Wright, 112 Ind. 230 . Though it was not discussed and the reasons given for the decision, yet the same construction was given to the statute. The petition for a rehearing is overruled. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7049780. Public record. Not legal advice.