Wuest et al. v. James et al.
Assignment of Homestead — Dormant judgment.
Where an officer executing a writ of execution founded on a judgment or order, causes a homestead to be set off to the debtor on such debtor’s application, the assignment of the homestead will not prevent the judgment from becoming dormant, upon a failure of the judgment creditor to comply with the provisions of section 5380, of the Revised Statutes.
(Decided March 27, 1894.)
Error to the Circuit Court of Muskingum county.
Andrew Wuest and Adam Wuest, partners as A. Wuest & Son, the plaintiffs in error, on the 13th day of March, 1875, recovered a judgment in the court of common pleas of Muskingum county against John J. James, for the sum of $403.64. On December 25, 1875, execution was issued on the judgment, and levied upon a lot of land in Zanesville, Muskingum county, the same being the property of John J. James, who had no personal property liable to execution. On August 28, 1877, an order of sale was issued which was duly returned by the sheriff, indorsed, that the appraisers summoned had set off to John J. James, as a homestead, the north half of said lot, valued at $1,000, and appraised the south half thereof at $500. *231Proceeding’s being stayed, James occupied said homestead as such until his death. On July 18, 1881, an order of sale was issued which was returned indorsed “not sold for want of bidders.” On August 26, 1881, another order of sale was issued, which was returned October 18, 1881, indorsed, “not sold for want of bidders.” In June,' 1889, John J. James died. On July 13, 1889, the plaintiffs in error commenced the original action in the court of common pleas of Muskingum county, against Mary James and others, the defendants in error, and prayed that the homestead right of John J. James in the north half of said lot — the same having ceased by reason of his death — might be sold, and the proceeds .of sale applied on said judgment, and for other and further proper relief.
A demurrer to the petition was sustained, and the plaintiffs not desiring to further plead, the action was dismissed, and the plaintiffs excepted.
The circuit court affirmed the judgment of the court of common pleas, and this proceeding is prosecuted to reverse the judgments of the circuit and common pleas courts.
T. J. Taylor and Charles A. Beard, for plaintiffs in error.
John W. King, for defendants in error.
By the Court.
By virtue of section 5380 of the Revised Statutes, if execution on a judgment rendered in any court of record in this state, be not sued out within five years from the date of the judgment, or if five years intervene between the date of the last execution issued on such judgment and the *232time of suing out another execution thereon, such judgment shall become dormant, and shall cease to operate as a lien on the estate of the judgment debtor. There were two orders of sale issued in 1881, but for want of bidders there was no sale. From the return of the order of sale on October 18, 1881, to the filing of the petition in this case, on July 13, 1889' — a period of over seven years— nothing was done by the plaintiffs to keep alive their judgment. By failure to sue out execution for a period of over five intervening years, the judgment became dormant before the commencement of this action, and under section 5380 ceased to operate as a lien on the estate of the judgment debtor; and the levy of 1875 ceased to be a lien on the north half of the Zanesville lot, at the expiration of five years from the issuing of the last execution on the judgment.
The homestead was set off to the debtor, John J.. James, in 1877, under the provisions of section 5438 of the Revised Statutes. While that section secures to the debtor a homestead, it contains no language, we think, that prolongs the life of the judgment, or permits any laches on the part of the creditor in protecting his judgment. The lien arises from or is incident to the judgment, and can be preserved only by keeping the judgment alive. Between sections 5438 and 5380 of the Revised Statutes, we discover no conflict that should prevent the debtor from enjoying a homestead, at the same time that the creditor is required to comply with the statute, if he would preserve his judgment from becoming dormant.
Judgment Affi/rmed.