This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
It has been often said that "judgments are invariably classed with contracts with reference to remedies upon them."1 "There are authorities which hold that judgments for some purposes are not contracts; but there is no authority that they are never to be treated as contracts, and all of them recognize the implied obligation of every judgment debtor to pay the judgment, and that for the purpose of actions and remedies upon them they are to be treated as contracts."2 At Common Law it was important to determine whether a judgment was a contract or not chiefly with reference to the form of action to be brought thereon. At Modern Law the form of action is usually immaterial. Still, where the legislature has divided actions into those in tort and those on contract, a judgment is yet held to be a contract.3 Under a statute authorizing attachment on all contracts express or implied, attachment may be brought on a judgment based on tort,4 or on a foreign judgment.5 This is generally, but not invariably, true. Thus a judgment is classed as a contract as concerns a statute forbidding arrest on execution in actions on contract;6 as to the jurisdiction of a justice of the peace,7 as to joinder of causes of action,8 or as to the right of counterclaim.9 Under a statute authorizing suit against a foreign corporation by another foreign corporation on a "cause of action which arose within the state." An effort was made to maintain an action under such statute upon a judgment rendered in another state upon the theory that it was a contract of record and that failure to pay it was a continuing breach, so that the cause of action arose wherever the judgment debtor was doing business and demand might be made. This theory was held to be unsound.10
4 Morley v. Railroad Co., 146 U. S. 162; O'Brien v. Young, 95 N. Y. 428; 47 Am. Rep. 64; Wyoming Nat. Bk. v. Brown, 9 Wyom. 153; 61 Pac. 465; denying rehearing. 7 Wyom. 494; 75 Am. St. Rep. 935; 53 Pac. 291.
5 Texas, etc., Railroad Co. v. Anderson, 149 U. S. 237; Sharpe v. Morgan, 44 Ill. App. 346; Cox v. Marlatt, 36 N. J. Law. 389; 13 Am. Rep. 454; Brauer v. Portland, 35 Or. 471; 58 Pac. 861; 59 Pac. 117; 60 Pac. 378. "The legislature could not thus alter the rate of interest to which a creditor was entitled upon his pre-existing judgment." Butler v. Rockwell, 17 Colo. 290, 295; 29 Pac. 458.
6 Bond v. Dolby, 17 Neb. 491; 23 N. W. 351.
7 State v. Gilmore, 141 Mo. 506; 42 S. W. 817.
1 Wattles v. Circuit Judge, 117 Mich. 662, 665; 72 Am. St. Rep. 590; 76 N. W. 115; Meyer v. Brooks, 29 Or. 203; 54 Am. St. Rep. 790; 44 Pac. 281.
2Gutta Percha, etc., Mfg. Co. v. Houston, 108 N. Y. 276, 279; 2 Am. St. Rep. 412; 15 N. E. 402.
3 Johnson v. Butler, 2 la. 535; Moore v. Nowell, 94 N. C. 265.
4 Johnson v. Butler, 2 la. 535; Gutta Percha, etc., Mfg. Co. v. Houston, 108 X. Y. 276; 2 Am. St. Rep. 412; 15 N. E. 402; Nazro v. Oil Co., 36 Hun (X. Y.) 296; Donnelly v. Corbett, 7 N. Y. 500; First, etc., Bank v. Van Vooris, 6 S. D. 548; 62 N. W. 378.
5 Wattles v. Circuit Judge, 117 Mich. 662; 72 Am. St. Rep. 590; 76 N. W. 115; Gutta Percha, etc., Mfg. Co. v. Houston, 108 X. Y. 276; 2 Am. St. Rep. 412; 15 X. E. 402; Meyer v. Brooks, 29 Or. 203; 54 Am. St. Rep. 790; 44 Pac. 281.
6 Sawyer v. Vilas, 19 Vt. 43.
7 Stuart v. Lander, 16 Cal. 372; 76 Am. Dec. 538.
8Childs v. Mfg. Co., 68 Wis. 231; 32 X. W. 43.
9 Taylor v. Root, 4 Keyes (X. Y.) 335. But in Rae v. Hubert, 17 Ill. 572, a foreign judgment was held not included in "contract or agreement, express or implied," in a statute giving the right of set-off.
10 Anglo-American Provision Co. v. Provision Co., 169 X. Y. 506; 88 Am. St. Rep. 608; 62 X. E. 587. The court said: " Doubtless a judgment as a debt of record is a contract obligation of the highest nature. The cause of action has become merged, and the law implies the obligation and the promise of the defendant to pay; but it is not a contract in the sense of any engagement of the parties with each other.
A statute requiring action on contract to be brought in the name of the real party in interest, has been held not to apply to judgments.11