WILLIAM SOLEN et al., Appellants, v. VIRGINIA AND TRUCKEE RAILROAD COMPANY, Respondent
Solen v. Virginia & Truckee Railroad
WILLIAM SOLEN et al., Appellants, v. VIRGINIA AND TRUCKEE RAILROAD COMPANY, Respondent.
[No. 1020.]
WILLIAM SOLEN et al., Appellants, v. VIRGINIA AND TRUCKEE RAILROAD COMPANY, Respondent.
Interest to be Recovered must be Inserted in the Judgment. — If a party claims, and is entitled to, any interest, it should be inserted in the judgment. (Hawley, J.)
Interest Allowed in Actions ex delicto. — Interest is allowable upon the amount of a judgment recovered in an action ex delicto. (Beatty, O. J., and Leonard, J.)
Action upon Judgment — Necessity eor. — An action upon a domestic judgment can be maintained in this state when there is no necessity for bringing the suit, except such as has been occasioned by the fault of the judgment creditor, and in such an action interest can be recovered, although no interest is specified in this judgment. (Dissenting opinion of Beatty, C. J.)
Idem. — Neither the common law nor the practice gives to a judgment creditor an absolute right of action on a domestic judgment, unless such action is necessary, in order to enable plaintiff to have the full benefit of his judgment; he can not by his own neglect cause the necessity, and then invoke that condition in justification of the suit. (Concurring opinion of Leonard, J.)
Appeal from the District Court of the First Judical District, Storey County.
The conclusions of law drawn by the district court, and referred to in the opinions, are as follows:
1. Such judgment of William Solen against defendant drew no interest, for that the same was not specified therein, and for that the attorneys of said Solen waived the same by the form of judgment by them prepared.
2. The payment by defendant into court, on the twenty-ninth day of June, of the sum of fifteen thousand two hundred and forty-four dollars and sixty-five cents, satisfied, paid, and discharged the judgment of record and docket against defendant, and in favor of William Solen and his assignees.
3. That the plaintiffs have no cause of action against defendant, and it is entitled to recover costs herein against them.
C. H. Belknap and Kirkpatrick & Stephens, for Appellants:
1. Under the statute of Nevada, “concerning money of account and interest” (1 Comp. L. 4), the judgment sued upon in this cause bears interest from the date of its entry at the rate of ten per cent, per annum. All money judgments bear interest under this statute, whether founded in contract or tort — whether for debt or damages.
II. It is wholly immaterial that the judgment is silent as to interest. The interest is prescribed and affixed to the judgment by the statute. The judgment bears the legal rate of interest prescribed by the statute in force at the date of its rendition. When the rate claimed is the legal rate of ten per cent, per annum, it is not necessary to specify it in the judgment.
III. Interest is recoverable by an action on the judgment. And the action is maintainable, even though the interest could have been collected by execution on the judgment. These are concurrent remedies. (Freeman on Judgments, sec. 432; 1 Am. L. Cases, 621, 622; Klock v. Robinson, 22 Wend. 157.)
B. C. Whitman, for Respondent:
I. The suit of appellants should never have been entertained by the district court; they had, or had not, a right to execution upon the judgment of William Solen v. Virginia do' TrucJcee Railroad (which sounded in damages for injury to his person). If they had such right, then no suit could be maintained. If such, a rule ever existed, the minute provisions of the practice act of this state has destroyed its reason. (Pitzer v. Russel, 4 Or. 124; Strong v. Barnhart, 5 Id. 499. See, also, Wells v. Dexter, 1 Eoot, Conn. 253. Dissenting opinion in Williams v. Dennison, 16 Conn. 28; White v. Hadnot, 1 Port. (Ala.) 419; Lee v. Giles, 1 Bailey, S. C. 449.) ■ If appellants had no right to an execution, then certainly they had no cause of action. If it has been decided that they had no right to execution, how can the sequitur be avoided? (Solen v. V. dc T. R. R., 14 Nev. 405).
II. Appellants, Kirkpatrick, Stephens & Belknap, had no cause of action against respondent. They each and all claim as assignees of Solen the original judgment creditor. (Freeman on Judgments, sec. 424; Love v. Fairfield, 13 Mo. 300; Getchell v. Mamey, 69 Me. 442.) ,
III. No interest can follow or flow from any judgment, except a judgment for money. That appellants are wrong in their idea, that a written contract absolutely silent on the subject of interest, would bear any after due, is evident from the reading of the statute, that refers to the rate of interest; so if a contract in writing calls for interest, failing to specify the rate or time of commencement, ten per cent.' follows after due; but interest must in any event be called, for.
C. H. Belknap, and Kirkpatrick & Stephens, for Appellants, in reply:
I. Kirkpatrick, Stephens & Belknap are proper parties. (Moak’s Yan Santvord’s PI. 68; Grain v. Aldrich, 38 Cal. 514; Cook v. Genessee Ins. Co., 8 How Pr. 514.)
II. Plaintiffs could not have accepted the money paid on the twenty-ninth of June, without acquiescing in the condition on which it was paid, and abandoning all claim to interest on the judgment. Defendant might as well have kept the money in its own coffers; for, by the conditions it annexed, plaintiffs were precluded from accepting, or touching it. Plaintiffs refused to accept it, and, therefore, it could not operate as payment to them, in Avhole or in part. (7 Wait’s Actions and Defenses, 390, 391, 405; Hall v. Holden, 116 Mass. 172; Cole v. Ghamplain T. Go., 26 Yt. 87;’ Toolce v. Bonds, 29 Texas, 419.)
By the Court,
Hawley, J.:
On the thirteenth day of December, 1876, William Solen, in an action for damages for personal injuries, recovered judgment against the Yirginia and Truckee Railroad Company for fifteen thousand dollars. The judgment, as entered, Avas prepared by the attorneys for .Solen, and did not call for any interest.
On the twenty-fifth day of February, 1878, Solen assigned to C. H. Belknap, M. Kirkpatrick, and James A. Stephens (his attorneys), one half of said judgment.
An appeal was taken' by the Virginia and Truckee Bail-road Company to the supreme court, and the judgment was affirmed. (13 Nev. 106.) The remittitur from the supreme court was issued June 22, 1878.
On the twenty-ninth day of June, 1878, the defendant paid to the clerk of the district court, " as and for the use of plaintiffs, the sum of fifteen thousand two hundred and forty-four dollars and sixty-five cents, in gold coin of the "United States," which payment was intended as full satisfaction of said judgment and costs, and was the full amount of said judgment and costs, exclusive of interest. The plaintiffs claimed interest on the judgment, and refused to accept the amount paid, in by defendant in satisfaction thereof.
This suit was instituted July 1, 1878, upon the judgment to recover the full amount therein named, with interest thereon, from the date of its rendition. The cause was tried before the court, without a jury, and, upon the facts presented, the court rendered judgment for defendant.
It was decided in Solen v. V. & T. R. R. Co., 14 Nev. 405, following the rule announced in Hastings v. Johnson, 1 Nev. 617, "that when the judgment of the court is silent as regards the collection of interest, it does not authorize the issuance of an execution calling for interest." Under this rule, if a party claims and is entitled to any interest, it should be inserted in the judgment. In this case the judgment, as drawn by plaintiffs' counsel, did not include interest.
No motion was thereafter made to amend the judgment in this respect.
This suit was not commenced until after the defendant had paid into court the full amount of the judgment and costs.
The conclusions of law, as found by the district court, are, in my opinion, correct.
The plaintiffs were bound by the judgment as entered. The defendant, upon the payment of the amount called for in the judgment, had the right to have the judgment satisfied.
This result, in my opinion, follows, regax'dless of the question whether the statute authorizes interest to be included in judgments founded in tort, or not.
The judgment of the district court is affirmed.