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Polk v. Tully

Supreme Court of Nevada
Feb 20, 1981
97 Nev. 27 (Nev. 1981)

Summary

concluding that, in the absence of a statute requiring an independent judgment renewal action, a judgment creditor may revive a judgment by filing a complaint in the same case number as the original judgment and serving the debtor with a summons and complaint

Summary of this case from Worsnop v. Karam

Opinion

No. 11104

February 20, 1981

Appeal from Eighth Judicial District Court, Clark County; Carl J. Christensen, Judge.

Douglas J. Shoemaker, Las Vegas, for Appellant.

Keefer, Clark O'Reilly, and R. Steven Young, Las Vegas, for Respondent.


OPINION


On November 24, 1970, a money judgment was entered in favor of respondent. Almost six years passed, and the judgment remained unenforced.

The statute of limitations for an action upon a judgment is six years. See NRS 11.190(1)(a).

On November 19, 1976, respondent filed a complaint seeking to revive the judgment. The complaint was filed in the same case number as the original judgment. Respondent did not obtain leave of court to file the new complaint in accordance with NRCP 15(a). A summons issued, and appellant was served.

Appellant filed an answer to the complaint on January 31, 1977. Respondent moved for summary judgment on May 12, 1978. Appellant moved to dismiss the complaint on June 16, 1978. The district court denied appellant's motion to dismiss and granted respondent's motion for summary judgment. This appeal followed.

1. Appellant's first contention is that a judgment may not be revived by a complaint filed in the same case number as the original judgment. Appellant argues that a judgment can be revived only by an independent action.

Appellant cites Reid v. Bristol, 86 S.E.2d 417 (N.C. 1955), for this proposition. However, in Reid the court emphasized that no complaint was filed and no summons was issued. Thus, Reid is distinguishable from the present case.

The proper procedure for reviving a judgment in Nevada is not clear. In many states the revival of judgments is provided for by statute. Nevada has no such statute. At least one other court has held that, in the absence of a statute, a proceeding to revive a money judgment is not a new suit, but is part of the original action. See Donellan Jerome, Inc. v. Trylon Metals, Inc., 270 F. Supp. 996 (N.D.Ohio 1967).

It appears that most statutes provide for revival by a motion in the original action, similar to the procedure followed by respondent. See, e.g., Ariz. Rev. Stat. § 12-1612 (West Supp. 1976); Kan. Stat. § 60-2404 (Weeks 1976); La. Code Civ. Pro. Ann. art. 2031 (West 1960).

In the instant case, although the action was brought within the original action, appellant was served with a summons and complaint. Appellant clearly had notice, as evidenced by his filing an answer. The district court concluded that, in the absence of a statute requiring an independent action, the procedure followed by respondent was not improper. We agree. To hold otherwise would exalt form over substance.

The district court found that "it would be a useless act to file a separate action to revive the judgment in this matter."

2. Appellant argues that even if the procedure followed by respondent was proper, respondent failed to obtain leave of court to file the new pleading, as required by NRCP 15(a). However, even if such leave be required, appellant waived this objection by not raising it in his answer. Cf. Johnson v. Johnson, 55 Nev. 109, 27 P.2d 532 (1933). Appellant did not object to respondent's failure to obtain leave of court until 16 months after filing his answer. Our conclusion that appellant waived this objection is in harmony with the goal of our rules of civil procedure: "to secure the just, speedy, and inexpensive determination of every action." NRCP 1.

Affirmed.


Summaries of

Polk v. Tully

Supreme Court of Nevada
Feb 20, 1981
97 Nev. 27 (Nev. 1981)

concluding that, in the absence of a statute requiring an independent judgment renewal action, a judgment creditor may revive a judgment by filing a complaint in the same case number as the original judgment and serving the debtor with a summons and complaint

Summary of this case from Worsnop v. Karam

In Polk, the Nevada Supreme Court allowed revival of a judgment by the filing of a complaint in the same case number as the original judgment.

Summary of this case from Estate of Thompson v. Turner
Case details for

Polk v. Tully

Case Details

Full title:H.W. POLK, AKA HARRY W. POLK, APPELLANT, v. FLORENCE T. TULLY, RESPONDENT

Court:Supreme Court of Nevada

Date published: Feb 20, 1981

Citations

97 Nev. 27 (Nev. 1981)
623 P.2d 972

Citing Cases

Worsnop v. Karam

Regardless, even if Karam intended to file an action on the judgment, we conclude that his motion and…

McCarthy v. Johnson

To conclude otherwise would exalt form over substance. Polk v. Tully, 97 Nev. 27, 623 P.2d 972 (Nev. 1981).…