Oldham, Gordon G., Jr.

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Civil Procedure: Running of Limitation Period Not Tolled by Supplementary Proceedings

University of Florida Levin College of Law

Florida Law Review Volume 4 Issue 1 Article 8 March 1951 Civil Procedure: Running of Litigation Period Not Tolled by Supplementary Proceedings Gordon G. Oldham Jr. Follow this and additional works at: https://scholarship.law.ufl.edu/flr  Part of the Law Commons Recommended Citation Gordon G. Oldham Jr., Civil Procedure: Running of Litigation Period Not Tolled by Supplementary Proceedings, 4 Fla. L. Rev. 96 (1951). Available at: https://scholarship.law.ufl.edu/flr/vol4/iss1/8 This Article is brought to you for free and open access by UF Law Scholarship Repository. It has been accepted for inclusion in Florida Law Review by an authorized editor of UF Law Scholarship Repository. For more information, please contact kaleita@law.ufl.edu. DATE DOWNLOADED: Mon Aug 22 16:27:34 2022SOURCE: Content Downloaded from HeinOnlineCitations:Bluebook 21st ed.			                                                                Gordon G. Oldham Jr., Civil Procedure: Running of Limitation Period Not Tolled bySupplementary Proceedings, 4 U. FLA. L. REV. 96 (1951).                              ALWD 7th ed.                                                                         Gordon G. Oldham Jr., Civil Procedure: Running of Limitation Period Not Tolled bySupplementary Proceedings, 4 U. Fla. L. Rev. 96 (1951).                              APA 7th ed.                                                                          Oldham, G. (1951). Civil procedure: running of limitation period not tolled bysupplementary proceedings. University of Florida Law Review, 4(1), 96-97.            Chicago 17th ed.                                                                     Gordon G. Oldham Jr., "Civil Procedure: Running of Limitation Period Not Tolled bySupplementary Proceedings," University of Florida Law Review 4, no. 1 (Spring 1951):96-97                                                                                McGill Guide 9th ed.                                                                 Gordon G. Oldham Jr., "Civil Procedure: Running of Limitation Period Not Tolled bySupplementary Proceedings" (1951) 4:1 U Fla L Rev 96.                                AGLC 4th ed.                                                                         Gordon G. Oldham Jr., 'Civil Procedure: Running of Limitation Period Not Tolled bySupplementary Proceedings' (1951) 4(1) University of Florida Law Review 96           MLA 9th ed.                                                                          Oldham, Gordon G. Jr. "Civil Procedure: Running of Limitation Period Not Tolled bySupplementary Proceedings." University of Florida Law Review, vol. 4, no. 1, Spring1951, pp. 96-97. HeinOnline.                                                         OSCOLA 4th ed.                                                                       Gordon G. Oldham Jr., 'Civil Procedure: Running of Limitation Period Not Tolled bySupplementary Proceedings' (1951) 4 U Fla L Rev 96Provided by: University of Florida / Lawton Chiles Legal Information Center-- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and    Conditions of the license agreement available at https://heinonline.org/HOL/License-- The search text of this PDF is generated from  uncorrected OCR text.-- To obtain permission to use this article beyond the scope of your  license, please use:Copyright Information1Oldham: Civil Procedure: Running of Litigation Period Not Tolled by SupplPublished by UF Law Scholarship Repository, 1951CASE COMMENTSCIVIL PROCEDURE: RUNNING OF LIMITATION PERIODNOT TOLLED BY SUPPLEMENTARY PROCEEDINGSYoung v. McKenzie, 46 So.2d 184 (Fla. 1950)Plaintiff, in 1940, was assigned a judgment entered against defen-dant in May 1929. In 1949 he secured a writ of scire facias, executionof which was returned unsatisfied. Thereupon, in March of that year,he instituted supplementary proceedings for discovery of the judgmentdebtor's property. In these proceedings the court directed to thejudgment debtor and parties to whom certain of his assets had beentransferred a rule nisi to show why those assets should not be subjectto execution. A motion to quash the rule was granted June 1, 1949,on the ground that the limitation period had expired. On appeal,HEL, supplementary proceedings not completed prior to the expira-tion of the statutory period are barred by the statute, regardless oftheir date of commencement. Judgment affirmed.Proceedings supplementary to execution, although governed bystatute in Florida,' were recognized as a bill of discovery in earlyEngland.2 Today statutes permit such proceedings at law as a sub-stitute for a creditor's bill in equity.3 The proceeding, which isbrought after the sheriff is unable to satisfy execution, is directed tothe discovery of the judgment debtor's property as well as to theapplication of that property to the debt for which execution wasissued.4Supplementary proceedings are designed to empower the court toenforce its judgment, thereby obviating the necessity of an indepen-'FLA. STAT. §§55.52-55.59 (1949).2E.g., Angell v. Draper, 1 Vern. 399, 23 Eng. Rep. 543 (Ch. 1686).3E.g., Florida Guaranteed Securities v. McAllister, 47 F.2d 762 (S.D. Fla.1931); Smith v. Smith, 51 Cal. App.2d 29, 124 P.2d 117 (1942); Sebring Co. v.O'Rourke, 101 Fla. 885, 134 So. 556 (1931); Wickwire Spencer Steel Co. v.Kemkit Scientific Corp., 292 N.Y. 139, 54 N.E.2d 336 (1944); Dillard v. Walker,204 N.C. 67, 167 S.E. 632 (1933); Cleverly v. District Ct., 85 Utah 440, 39 P.2d748 (1935).4 Richard v. McNair, 121"Fla. 733, 164 So. 836 (1935); In re Maltbie, 223N.Y. 227, 119 N.E. 389 (1918); Balch v. Wastall, 1 P. Wins. 445, 24 Eng. Rep.465 (Ch. 1718).[98]2Florida Law Review, Vol. 4, Iss. 1 [1951], Art. 8https://scholarship.law.ufl.edu/flr/vol4/iss1/8CASE COMMENTSdent suit to reach property that legally should be applied in satis-faction.-' Section 95.11(1) of Florida Statutes 1949 provides that "Anaction upon a judgment or decree of a court of record in the State ofFlorida . . ." must be commenced within twenty years. 6 Americanjurisdictions are not in agreement, however, as to whether supple-mentary proceedings should be classified as an action upon thejudgment or as a mere ancillary proceeding. If classified as theformer, they toll the running of the limitation period; but if con-sidered as the latter they must be completed before such period hasrun.Other jurisdictions, as well as Florida, have been faced with theissue of construing supplementary proceedings in relation to limitationstatutes.7 One view is that they constitute an action upon the judg-ment and as such need only be initiated within the limitation period.8Proponents of this view contend that supplementary proceedings areas much a means of enforcing the judgment as is the ordinary writof execution. 9 Some jurisdictions, however, regard them as an an-cillary step in the collection of judgments; hence their pendency failsto keep the judgments alive after the limitation period has run.10With the decision in the instant case, Florida adopts the rule thatthe judgment creditor must both commence and complete his sup-plementary proceedings within the period prescribed for enforcingthe judgment. The decision is based in large part upon the principlethat the life span of an execution does not exceed twenty years."The judgment creditor can still protect himself, however, as against5Virginia-Carolina Chem. Corp. v. Smith, 121 Fla. 720, 164 So. 717 (1935).6Massey v. Pineapple Orange Co., 87 Fla. 374, 100 So. 170 (1924) (20-yearperiod begins to run on date judgment is rendered and not when execution isissued).7Day, The Period during which a Judgment Remains a Lien on Realty inFlorida, 2 U. oF FLA. L. 1Ewv. 315, 326 (1949).SHigh v. Bank of Commerce, 95 Cal. 386, 30 Pac. 556 (1892); IT. A. ThiemanCo. v. Wolff, 125 Ky. 832, 102 S.W. 843 (1907); Fino v. Municipal Ct. of Boston,93 N.E.2d 558 (Mass. 1950).9Coates Bros. v. Wilkes, 94 N.C. 174 (1886).'ORing v. Palmer, 309 Ill. App. 333, 32 N.E.2d 956 (1941); McAfee v.Reynolds, 130 Ind. 33, 28 N.E. 423 (1891); Newell v. Dart, 28 Minn. 248, 9N.W. 732 (1881); Merchants Nat. Bank v. Braithwaite, 7 N.D. 358, 75 N.W. 244(1898)."See Young v. McKenzie, 46 So.2d 184, 186 (Fla. 1950). But cf. Day, supranote 7, at 315 et seq.3Oldham: Civil Procedure: Running of Litigation Period Not Tolled by SupplPublished by UF Law Scholarship Repository, 1951

Civil Procedure: Running of Litigation Period Not Tolled by Supplementary Proceedings

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Civil Procedure: Running of Litigation Period Not Tolled by Supplementary Proceedings

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