payments of installments of alimony falling due during her absence.20

The court may strike the defendant's answer from the files and hold him in default for refusing to comply with an order to pay temporary alimony; 27 but willful refusal to pay alimony cannot be the basis of a prosecution by the state.28

DIVISION III-PAYMENT, SATISFACTION, AND DISCHARGE

§ 1336. Dormant judgments

"If execution shall not be sued out within five years from the date of any judgment that now is or may hereafter be rendered, in any court of record in this state, or if five years shall have intervened between the date of the last execution issued on such judgment and the time of suing out another writ of execution thereon, such judgment shall become dormant, and shall cease to operate as a lien on the estate of the judgment debtor: Provided, that this section shall not apply to judgments against municipalities." 29

26 Stanfield v. Stanfield (Okl.) 168 P. 912.

27 Maharry v. Maharry, 47 P. 1051, 5 Okl. 371.

In divorce the district court can punish a refusal to pay alimony as a contempt by striking the defendant's answer from the record or refusing to permit him to plead further in the case, where he has voluntarily absented himself to avoid contempt proceedings for failure to pay such alimony, and punishment for contempt cannot be otherwise inflicted. Bennett v. Bennett, 81 P. 632, 15 Okl. 286, 70 L. R. A. 864.

28 Bridgess v. State, 9 Okl. Cr. 450, 132 P. 503.

29 Rev. Laws 1910, § 5153; Beadles v. Fry, 82 P. 1041, 15 Okl. 428, 2 L. R. A. (N. S.) 855 (see 28 S. Ct. 522, 209 U. S. 393, 52 L. Ed. 849); Killen v. Nebraska Loan & Trust Co., 78 P. 159, 70 Kan. 83.

This statute applies to judgments against school districts, notwithstanding Wilson's Rev. & Ann. St. 1903, § 6196 (Rev. Laws 1910, § 7832). Wenner v. Board of Education of City of Perry, 106 P. 821, 25 Okl. 515.

Execution is not insufficient to prevent judgment from becoming dormant under Rev. Laws 1910, § 5153, because in direction to sheriff name of person whose land was to be seized is omitted, when name appears in execution as judgment debtor whose goods are to be seized thereunder. Kale v. Humphrey (Okl.) 170 P. 223.

Code Civ. Proc. § 445, providing that, if execution be not sued out within five years from the date of the judgment, it shall become dormant, has reference to general executions against the property of the debtor, and not to special executions provided for by Gen. St. 1901, § 4994. Watson v. Keystone Iron Works Co., 74 P. 269, 70 Kan. 43, judgment affirmed 78 P. 156, 70 Kan. 61. A municipality cannot assert the dormancy of certain judgments against it for failure to issue executions thereon within five years, where during most of

An execution may be issued and levied under a judgment against the property of one or more joint judgment debtors, though the judgment is dormant as to another of the judgment debtors.30

A municipality is estopped to assert that judgments against it are dormant for failure to issue executions thereon within five years, where, during a large part of that period, it has been making payments on the judgments out of the judgment fund under arrangement with its judgment creditors.31

§ 1337. Revival

15 82

"If a judgment become dormant, it may be revived in the same manner as is prescribed for reviving actions before judgment." An action will lie to revive a dormant judgment within a year after it has become dormant. The statutory provision for reviving by motion and notice within said year is cumulative.33

It has been held that a judgment can be revived without the consent of the judgment debtor only when the order of revivor is made within a year after the judgment becomes dormant, and when it has been dormant for more than a year there is no power in the judge or court to revive it, although a proceeding to revive was begun before the year of dormancy had expired.34

that period the municipality was carrying out its contract arrangement with its judgment creditors to pay such judgments in the order of their rendition out of the judgment fund, the effect of which was to prevent the judgment creditors from taking such steps as the law permitted to collect their judg ments of execution or mandamus. Beadles v. Smyser, 28 S. Ct. 522, 209 U. S. 393, 52 L. Ed. 849, reversing 87 P. 292, 17 Okl. 162.

An agreement between all of the judgment creditors of a city that it shall pay their judgments in the order of priority of the date thereof a resolution of the city council which refers to such agreement did not change the status of the city towards such creditors, or excuse any creditor from suing out an execution within five years of the date his judgment was rendered. Beadles v. Fry, 82 P. 1041, 15 Okl. 428, 2 L. R. A. (N. S.) 855.

30 Winter v. Dunlap, 114 P. 1057, 84 Kan. 519.

31 Beadles v. Smyser, 209 U. S. 393, 28 S. Ct. 522, 52 L. Ed. 849, reversing 17 Okl. 162, 87 P. 292.

32 Rev. Laws 1910, § 5300.

Revivor of action, see Rev. Laws 1910, §§ 5283-5299.

33 Baker v. Hummer, 2 P. 808, 31 Kan. 325; Sneary v. Nichols & Shepard Co. (Okl.) 173 P. 366; Rev. Laws 1910, § 5293.

84 Reeves v. Long, 66 P. 1030, 63 Kan. 700; Rev. Laws 1910, § 5293; Newton v. Arthur, 55 P. 466, 8 Kan. App. 358.

Under Wilson's Rev. & Ann. St, 1903, c. 66, art. 19, a dormant judgment can

The revivor of a judgment against a corporation is unnecessary in order to maintain suit to collect the amount thereof from a stockholder; it being evidence of the validity, character, and amount of the creditor's claim, though not enforceable against the judgment Jebtor.3

§ 1338.

૩૩

Necessity

No action can be maintained on a judgment which has been permitted to remain dormant for more than a year.36

While an action is pending on a judgment there is no necessity to issue an execution on such judgment nor to obtain a revivor of the judgment to preserve the cause of action.37

Where a judgment debtor was convicted and confined in the penitentiary, an execution and order of sale issued on judgment after conviction, without revival of the judgment, are void.38

Where a judgment has been assigned by a corporation which is subsequently dissolved, no revivor in the name of the assignee is necessary, but the judgment may be kept alive by execution issued in the name of the plaintiff corporation after its dissolution.39

only be revived by an order of the court or a judgment thereof. Neal v. Le Breton, 78 P. 376, 14 Okl. 538.

The bringing of a suit by the defendant in a foreclosure case to quiet his title against deed void because the judgment was not revived on the death of plaintiff, before execution was issued thereon, is not in any sense a revivor of such judgment. Havens v. Pope, 62 P. 538, 10 Kan. App. 299.

An action cannot be maintained under Comp. Laws, p. 607, on a dormant domestic judgment, or a revivor of the same had, when more than three years have elapsed from the death of the judgment creditor and the appointment of an administrator of his estate. Mawhinney v. Doane, 17 P. 44, 40 Kan. 676.

Under Code, §§ 433, 440, the period within which an order reviving a dormant judgment may be made without consent is one year from the time it could have been first made; and, where a notice is given two days before the expiration of the year that an application to revive a judgment will be presented to the court 28 days after the year has elapsed, an order of revivor made upon that notice at the date fixed, or at a subsequent date, without the consent of the adverse party, is a nullity. Tefft v. Citizens' Bank, 13 P. 783, 36 Kan. 457.

35 Douglass v. Loftus, 119 P. 74, 85 Kan. 720, L. R. A. 1915B, 797, Ann. Cas. 1913A, 378.

36 Brown v. Akeson, 86 P. 299, 74 Kan. 301.

37 Treat v. Wilson, 70 P. 893, 65 Kan. 729.

38 Ashmore v. McDonnell, 16 P. 687, judgment reversed on rehearing, 18 P 821, 39 Kan. 669.

39 Gilmore v. Harpster, 133 P. 726, 90 Kan. 405.

A judgment becomes dormant upon the death of the judgment creditor, 40 or upon the death of one of the members of a firm in whose favor a judgment has been rendered.11

Where a judgment has become dormant by the death of the judg ment creditor, and no proceedings to revive it have been taken within one year after the death of plaintiff, an execution issued thereon is void and may be enjoined.*2

An executor of a wife's estate may maintain proceedings to revive a judgment granting alimony.43

40 A judgment becomes dormant on the death of the judgment creditor, though the action was prosecuted by one having no beneficial interest therein, and the judgment belongs to another. Updegraff v. Lucas, 93 P. 630, 76 Kan. 456, 13 Ann. Cas. 860, rehearing denied 94 P. 121, 76 Kan. 456, 13 Ann. Cas. 860.

41 On the death of one of the members of a firm in whose favor a judgment has been recovered, the judgment becomes dormant, and no execution can issue until the judgment is revived as provided by law. Newhouse v. Heilbrun, 74 Kan. 282, 86 P. 145, 10 Ann. Cas. 955.

42 Updegraff v. Lucas, 93 P. 630, 76 Kan. 456, 13 Ann. Cas. 860, rehearing denied 94 P. 121, 76 Kan. 456, 13 Ann. Cas. 860.

Under Comp. Laws, p. 607, providing that an order to revive an action on the death of either party cannot be made after the expiration of one year. without the consent of the opposite party, when the petition in an action on a judgment shows that the judgment creditor has been dead more than three years, and does not allege that the judgment was ever revived, and plaintiffs demur to the defense that it was never revived, the judgment will be held to be dormant, and it is immaterial that plaintiffs, the children of the judgment creditor, are minors, where their petition recites the appointment of an administrator for her estate, of which the judgment was a part. Mawhinney v. Doane, 20 P. 488, 40 Kan. 681.

An order to revive a judgment in the name of representatives or successors of the plaintiff cannot be made without defendant's consent, after one year from the time the order might first have been made. Jones v. Nye, 56 Okl. 578, 156 P. 332, L. R. A. 1916E, 735; Neal v. Le Breton, 78 P. 376, 14 Okl. 538. Under Rev. Laws 1910, §§ 5291, 5293, 5299, an order to revive a judgment against representatives or successors of defendants without their consent must be made within one year from time the order might have been first made, except where defendant's death is not known, or for other unavoidable reasons. Jackson v. Scott (Okl.) 173 P. 70.

43 Chumos v. Chumos, 143 P. 420, 93 Kan. 33.

That an executor of a wife's estate, who was not guardian of or responsible for the care of her child, knew or consented to the removal of the child to another country, held insufficient ground for refusing his application to revive a divorce judgment awarding alimony and adjusting the property rights of the deceased wife. Chumos v. Chumos, 143 P. 420, 93 Kan. 33.

The fact that one of two judgment debtors dies, and there is no revivor as to his estate, does not extinguish the liability of the other or bar a proceeding to revive the judgment as against the surviving debtor."

Where an application to revive a judgment is made by a proper party in due form within the time prescribed by law, the reviver must be granted as a matter of right.45

Where a party consents or fails to object to a revival of a judgment in the name of the heirs at law, instead of the personal representatives of a decedent, and no appeal is taken from the order, the defect, if any, is waived, and he cannot thereafter complain because judgment was not revived in the name of the personal representatives.46

A summons issued on the application for an order of revivor, containing substantially all that is required to be stated in the statutory notice of a motion to revive, and served a reasonable time before hearing, is sufficient notice to uphold the order of revivor.47

Service on a nonresident defendant by publication is sufficient in a proceeding to revive a judgment.

48

44 Richardson v. Painter, 102 P. 1099, 80 Kan. 574, 133 Am. St. Rep. 224, 46 Chumos v. Chumos, 143 P. 420, 93 Kan. 33.

46 Zollinger v. Durham (Okl.) 179 P. 752.

47 Schultz v. Hine, 18 P. 221, 39 Kan. 334; Kansas & T. Coal Co. v. Carey, 70 P. 589, 65 Kan. 639.

In a proceeding to revive a dormant judgment in the name of the executor of the deceased judgment creditor, a notice properly entitled in the case, containing the matters required to be contained in a notice of an application of revivor, signed by the clerk of the court, and attested by the seal of the court, and containing a command to the sheriff to serve the same upon the defendants therein named, is a sufficient notice, and is sufficiently signed. Selders v. Boyle, 49 P. 320, 5 Kan. App. 451.

On a motion to revive a judgment in the name of the administratrix of one deceased, an execution returned after the statutory period of 60 days is competent as evidence of the issuance of such execution. Alford v. Hoag, 54 P. 1105, 8 Kan. App. 141.

Civ. Code, §§ 59-61, require summonses to be served by the sheriff. Section 442 provides that notice of an application to revive a dormant judgment must be served in the same manner as a summons. Held, that a notice of such application, served and returned by an attorney of record, is void. Wilson v. McCornack, 61 P. 1068, 10 Okl. 180.

4s Hartz v. Fitts, 132 P. 1187, 89 Kan. 751; Ow v. Dalhoff, 133 P. 569, 90 Kan. 329.