2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-1420 - Dormant judgment; revivor; time limitation.

25-1420.
Dormant judgment; revivor; time limitation.
If a judgment becomes dormant, it may be revived in the same manner as is prescribed for reviving actions before judgment;
Provided,
no judgment shall be revived unless action to revive the same be commenced within ten years after such judgment became dormant.
Source
R.S.1867, Code § 473, p. 472;
Laws 1909, c. 154, § 1, p. 557;
R.S.1913, § 8041;
C.S.1922, § 8982;
C.S.1929, § 20-1420;
R.S.1943, § 25-1420.
Annotations
1. Limitation
2. Jurisdiction
3. Proceeding
4. Lien
5. Miscellaneous
1. Limitation
Alimony decree does not become dormant by lapse of time. Nowka v. Nowka, 157 Neb. 57, 58 N.W.2d 600 (1953).
A decree for child support rendered in a divorce action does not become dormant because of a failure to issue execution thereon for more than five years. In re Application of Miller, 139 Neb. 242, 297 N.W. 91 (1941).
A proceeding to revive a dormant judgment may be instituted at any time within ten years after it becomes dormant. Baker Steel & Machinery Co. v. Ferguson, 137 Neb. 578, 290 N.W. 449 (1940).
Judgment not revived within ten years after becoming dormant is forever barred. Farmers & Merchants Bank v. Merryman, 126 Neb. 684, 254 N.W. 428 (1934).
Notwithstanding this section limiting revivor to ten years, domestic judgment is specialty, and action thereon is barred after five years. Armstrong v. Patterson, 97 Neb. 871, 152 N.W. 311 (1915).
Decree of foreclosure does not become dormant by failure to issue order of sale within five years. St. Paul Harvester Works v. Huckfeldt, 96 Neb. 552, 148 N.W. 153 (1914).
General statute of limitations does not apply. Moline, Milburn & Stoddard Co. v. Van Boskirk, 78 Neb. 728, 111 N.W. 605 (1907).
Limitation of one year for revivor of action does not apply to revivor of judgments. School Dist. No. 34, Adams County v. Kountze Bros., 3 Neb. Unof. 690, 92 N.W. 597 (1902).
2. Jurisdiction
A defendant in revival proceedings does not have the right to have a jury decide whether the original judgment was entered without personal jurisdiction. Cave v. Reiser, 268 Neb. 539, 684 N.W.2d 580 (2004).
While a defendant in revival proceedings may not use extrinsic evidence to relitigate the merits of the case, the defendant can introduce extrinsic evidence to show that the original judgment was void because the court entered it without jurisdiction. Cave v. Reiser, 268 Neb. 539, 684 N.W.2d 580 (2004).
Order of revival of alimony decree was proper. Miller v. Miller, 160 Neb. 766, 71 N.W.2d 478 (1955).
Decree for child support is not a judgment within the meaning of this section. Miller v. Miller, 153 Neb. 890, 46 N.W.2d 618 (1951).
A decree for alimony is not a judgment within the meaning of this section. Lippincott v. Lippincott, 152 Neb. 374, 41 N.W.2d 232 (1950).
Revivor must be in court where judgment rendered, not in court to which transcripted. Bank of Miller v. Moore, 98 Neb. 843, 154 N.W. 731 (1915).
A judgment of the federal court, when dormant, can only be revived in the court where it was rendered. Holmes v. Webster, 98 Neb. 105, 152 N.W. 312 (1915).
District court may revive transcripted judgment from inferior court though judgment became dormant before transcripted. Bussing v. Taggert, 73 Neb. 787, 103 N.W. 430 (1905).
District court may revive judgment transcripted from county court. Creighton & Morgan v. Gorum, 23 Neb. 502, 37 N.W. 76 (1888).
Revivor by county court is not error. Garrison v. Aultman & Co., 20 Neb. 311, 30 N.W. 61 (1886).
County court may revive judgment rendered by it; if transcripted to district court, latter should revive. Dennis v. Omaha Nat. Bank, 19 Neb. 675, 28 N.W. 512 (1886).
Section is applicable to judgments rendered by justice of peace. Miller v. Curry, 17 Neb. 321, 22 N.W. 559 (1885).
3. Proceeding
Defendant primarily liable, with other defendants, for aliquot part of judgment and surety for the others as to the remainder, may pay judgment and take assignment thereof, and, as assignee, is entitled to revive same in its entirety. Orchard & Wilhelm Co. v. Sexson, 119 Neb. 370, 229 N.W. 17 (1930).
This section applies to judgment rendered before as well as those rendered after its adoption. Atkinson v. Uttley, 98 Neb. 722, 154 N.W. 247 (1915).
Proceedings to revive and action upon judgment are cumulative remedies; judgment if valid and unpaid will be revived. Young v. City of Broken Bow, 94 Neb. 470, 143 N.W. 742 (1913).
No objections which go behind original judgment will be heard. American Freehold Land Mortgage Co. v. Smith, 84 Neb. 237, 120 N.W. 1113 (1909).
Assignee of judgment may have same revived. Brunke v. Gruben, 84 Neb. 14, 120 N.W. 435 (1909).
Judgment debtor cannot plead as a defense a setoff or counterclaim. Lashmett v. Prall, 83 Neb. 732, 120 N.W. 206 (1909).
Revivor of judgment void on its face is nullity. Minnesota Thresher Mfg. Co. v. L'Heureux, 82 Neb. 692, 118 N.W. 565 (1908).
While a revivor proceeding is not in one sense the commencement of a new action, it is the commencement of new and different proceeding. St. Paul Harvester Co. v. Mahs, 82 Neb. 336, 117 N.W. 702 (1908).
Judgment creditor must rebut presumption of payment. Platte County Bank v. Clark, 81 Neb. 255, 115 N.W. 787 (1908).
Judgment of revivor can be rendered against a nonresident upon service by publication. White v. Ress, 80 Neb. 749, 115 N.W. 301 (1908).
May impeach officer's return of service in original action. Johnson v. Carpenter, 77 Neb. 49, 108 N.W. 161 (1906).
Order of revivor is sufficient though without awarding execution. Thornhill v. Hargreaves, 76 Neb. 582, 107 N.W. 847 (1906).
Affidavit alleging judgment, nonpayment, that it is dormant, and prayer for order is sufficient. Furer v. Holmes, 73 Neb. 393, 102 N.W. 764 (1905).
All jointly liable should be made defendants. Clark v. Commercial Nat. Bank of Columbus, 68 Neb. 764, 94 N.W. 958 (1903).
Attorney having lien may intervene and revive in own name to extent of lien proper. Greek v. McDaniel, 68 Neb. 569, 94 N.W. 518 (1903).
Plea of payment admits validity of judgment. McCormick v. Carey, 62 Neb. 494, 87 N.W. 172 (1901).
Proceeding is continuation of original action. Bankers' Life Ins. Co. v. Robbins, 59 Neb. 170, 80 N.W. 484 (1899).
This section is substitute for writ of scire facias. Broadwater v. Foxworthy, 57 Neb. 406, 77 N.W. 1103 (1899).
4. Lien
Judgment when revived is lien only on realty then owned by debtor. Halmes v. Dovey, 64 Neb. 122, 89 N.W. 631 (1902).
Lien is renewed from date of revivor. Horbach v. Smiley, 54 Neb. 217, 74 N.W. 623 (1898).
5. Miscellaneous
A judgment is not a contract for purposes of the tolling provision of section 25-216. Nelssen v. Ritchie, 304 Neb. 346, 934 N.W.2d 377 (2019).
The only defenses available against an application to revive are (1) there is no judgment to revive, (2) the purported judgment is void, and (3) the judgment was paid or otherwise discharged. Cave v. Reiser, 268 Neb. 539, 684 N.W.2d 580 (2004).