It must be conceded that, prior to March 1, 1906, when the revised laws went into effect, an action in this state on a foreign judgment was not barred until the judgment debtor had been within the state for ten years. The rule as to judgments of this state was otherwise. No action could then, or now, be maintained on such judgments after the expiration of ten years from the entry thereof; for by virtue of the statute such judgments in all cases ceased to exist as such, or as a cause of action, after ten years from their rendition. G. S. 1866, c. 66, § 254; G. S. 1894, § 5425; R. L. 1905, § 4272; Newell v. Dart, 28 Minn. 248, 9 N. W. 732; Dole v. Wilson, 39 Minn. 330, 40 N. W. 161; Spencer v. Haug, 45 Minn. 231, 47 N. W. 794; Brown v. Dooley, 95 Minn. 146, 103 N. W. 894. The cause of action on such a judgment, however, is saved by commencing it at any time within ten years from the time of its rendition, although the action is not finally determined until after the expiration of the ten years. Sandwich Mnfg. Co. v. Earl, 56 Minn. 390, 57 N. W. 938.

This difference between the limitation of an action upon a judgment of this state and an action upon a foreign judgment suggests a reason for a change of the existing law in this particular by the revised. laws of 1905, if one was made. Was such change made so as to put all judgments on the same basis as to the statute of limitations? Section 4071, R. L. 1905, provides that:

Actions can only be commenced within the periods prescribed in this chapter, after the cause of action accrues, except where, in special cases, a different limitation is prescribed by statute.

This made no change in the then existing law. It is to be noted, however, that by this section the limitation does not commence to run until the cause of action accrues, except in cases where a different limitation is prescribed by statute. Section 4075, R. L. 1905, provides that:

No action shall be maintained upon a judgment or decree of a court of the United States, or of any state or territory thereof, unless begun within ten years after the entry of such judgment.

It is to be observed that by this section the limitation begins to run from the entry of the judgment. In this respect the limitation in section 1075 is made an exception to the general provisions of section 4071 that the limitation shall run from the accruing of the cause of action. The original of section 4075 (G. S. 1894, § 5135) provided that an action upon a judgment or decree of a court of the United States, or any state or territory thereof, should be brought within ten years-that is, from the time the cause of action accruedfor it did not otherwise provide; hence it was within the general rule provided by G. S. 1894, § 5133. In this connection our attention is called to Laws 1899, p. 125, c. 123, which added a proviso to the then law as to the limitation of actions on judgments. This act is not here relevant, for it is apparent that the proviso was intended to meet the exigencies of a particular case, and was dropped by Laws 1901, p. 458, c. 279. The language of section 4075, R. L. 1905, is plain and unambiguous, and its meaning and purpose clear; for it departs from the language of the original section and provides that the limitation shall begin to run from the entry of the judgment in all cases, and not from the accruing of the cause of action. Section 4082, R. L. 1905, reads as follows:

If, when a cause of action accrues against a person, he is out of the state, an action may be commenced within the times herein limited after his return to the state; and if, after a cause of action accrues, he departs from and resides out of the state, the time of his absence is not part of the time limited for the commencement of the action.

This is identical with the provisions of G. S. 1894, § 5145; but it is not now applicable to a case arising under section 4075, R. L. 1905, which changed the time of the commencement of the running of the statute from the accruing of the action to the entry of the judgment, and expressly forbade the commencement of any action upon any judgment ten years after the entry thereof. If the provisions of section 4082 were to be construed as applicable to section 4075, it would entirely defeat the change made by the legislature, and eliminate by main strength from section 4075 the words "after the entry of the judgment"-a task ultra vires of any court, however expert it might

be in the art of judicial legislation. We therefore hold that the provisions of section 4075 are not modified by section 4082, and that an action in the courts of this state upon any judgment, whether domestic or foreign, must be brought within ten years from the rendition thereof, without reference to the residence of the judgment debtor during the ten years. Olson v. Dahl, 99 Minn. 433, 109 N. W. 1001, 8 L. R. A. (N. S.) 444.

It follows that this action is barred by the statute of limitations, and that the order appealed from must be reversed, and cause remanded with direction to the district court to sustain the defendants' deSo ordered.

murrer.

VAN L. ROSS v. MINNEAPOLIS, ST. PAUL & SAULT STE. MARIE RAIL

WAY COMPANY.1

November 1, 1907.

Nos. 15,272-(7).

Injury to Live Stock-Evidence.

In this an action against a carrier to recover damages for injuries to live stock while in transit, it is held that the record does not show that the issues were limited to the question whether the stock was injured by the bumping of the cars, that the verdict for the plaintiff is sustained by the evidence, and, further, that the court did not err in its rulings as to the admission of evidence.

Action in the district court for Hennepin county to recover $1,000 for injury to horses while in the custody of defendant as a common carrier. The case was tried before Holt, J., and a jury which returned a verdict in favor of plaintiff for $367.50. From an order denying its motion for judgment notwithstanding the verdict or for a new trial, defendant appealed. Affirmed.

Alfred H. Bright, for appellant.

F. N. Hendrix and L. J. Van Fossen, for respondent.

1 Reported in 113 N. W. 573.

START, C. J.

This action was brought in the district court of the county of Hennepin to recover damages for injury to the plaintiff's horses while they were in the possession of the defendant as a common carrier and in transit from Minneapolis to Kramer, North Dakota. There was a verdict for the plaintiff for $367.50, and the defendant appealed from an order denying its motion for judgment notwithstanding the verdict or for a new trial.

The principal question raised by the assignments of error is whether the verdict is sustained by the evidence. The undisputed evidence tends to show that the plaintiff, on March 12, 1906, delivered to the defendant, at Minneapolis, twenty horses and two mules, in good condition, to be transported by the defendant over its line of railway to Kramer, there to be delivered to the plaintiff; that the animals were unloaded and reloaded at Hankinson, North Dakota, and were then in good condition; that the defendant delivered to the plaintiff at the point of destination only nineteen of the horses, one having been so seriously injured in transit that it had to be killed; that six of those which were delivered were found to be more or less injured; and that one of the mules was injured, and afterwards died by reason thereof. The plaintiff offered evidence tending to show that at Hankinson a switch engine bumped a loaded car against the car into which plaintiff's horses had been there loaded. The witness who gave testimony to this effect admitted on his cross-examination that he was unable to say that the bumping did not occur before the horses were unloaded at Hankinson. This evidence is here made the basis of a claim on the part of the defendant that the plaintiff assumed the burden of proving a specified act of negligence which caused the injury to his horses; hence the whole case was confined to the single act of the bumping of the cars, and, the evidence failing to show affirmatively that the bumping occurred after the horses were reloaded, there is no evidence to support the verdict.

The claim is plausible, but it is unsound. In the case of Boehl v. Chicago, M. & St. P. Ry. Co., 44 Minn. 191, 46 N. W. 333, cited by counsel, the complaint expressly alleged that the injury to the horse was caused by a specific act of negligence on the part of the defendant, namely, by permitting the bumping or collision of its cars. This

being the sole issue, voluntarily tendered by the plaintiff, the burden was on him to prove that the horse was injured by the collision. The record in the case at bar affords no basis for the claim urged by the defendant. The complaint alleged, generally, the delivery of the animals in good condition to the defendant carrier, its failure safely to carry and deliver them, and the nature of the loss suffered thereby. The answer admitted that the defendant received the animals for transportation, that one of the horses received such injuries in transit that it was necessary to kill him, and put in issue the other allegations of the complaint.

At the close of the evidence the defendant's counsel moved the court to direct the jury to return a verdict in favor of the defendant, on the ground that there was no evidence from which reasonable minds might draw the inference that the injury to the horses was in any manner due to the fault of the defendant, but that there was conclusive evidence that the injury was due to the propensities of the animals and to the fault of the plaintiff. The motion was denied, and the court instructed the jury to the effect that if the plaintiff delivered the animals in good condition to the defendant for transportation, and it failed safely to carry and deliver them at their destination, it was incumbent on the defendant to show that "it exercised due care, and that the injury did not occur from any of its negligence but from other causes, such as the innate propensity of the animals to harm themselves, or each other, or through some negligence of plaintiff which contributed thereto." The issues so indicated were clearly submitted by the learned trial judge to the jury. No exceptions were taken to the charge at the trial, or on the motion for judgment or a new trial; nor is error here assigned as to the instructions given by the court. It conclusively appears, then, from this record, that the whole case was not "confined to the single act of the bumping of the cars at Hankinson," and, further, that counsel for the defendant at the trial did not claim anything of the kind.

It is further claimed by the defendant that the rule that proof of delivery of property to the carrier in good condition and failure safely to carry and deliver it at its destination makes a prima facie case of liability does not apply to live stock shipments where the owner or his agent accompanies the stock to look after it. The record does not