39 Ga. 405 | Ga. | 1869
Lead Opinion
The sole question in this case is, whether the Acts passed at different times from November, 1860, up to November, 1865, suspending the “Statute of Limitations,” suspended also the Acts providing that under certain circumstances judgments shall become dormant. In other words, is the Dormant Judgment Act, in the sense of the several suspending Acts, alluded to, a “ Statute of Limitations ?” It may be remarked, in passing, that these suspending Acts go into no detail, they all simply suspend the Statutes of Limitations, and in the investigation of the question before us, the defendant in error must clearly be in the right, unless, in some fair and just sense, the dormant Judgment Act can be covered by the words, statutes of limitations.
Much stress has been laid in the argument upon the fact that the codifiers have placed this provision of the law in the chapter devoted to Statutes of Limitations.' Code, section 2863. But this argument has but little force, if it be remembered that they have also put the provision of three months after judgment for applying for a certiorari, and thirty days from the adjournment of the Court for suing out a writ of error, under this same head. Who would contend for a moment that these provisions were suspended by the suspending Acts ? This Court has over and over again, during the existence of the suspending Acts, dismissed writs of error because not sued out in time, nor is it probable that it ever suggested itself to any one that the suspending Acts suspended also these provisions. At best, all that can be said is, that it was the opinion of the codifiers that these pro
It was said also in the argument that the Act of 1856, known as “Cone’s Act,” which is entitled “An Act limiting the time in which suits in the Courts of law in this State must be brought, and also limiting the time in which indictments are to be found and prosecuted in certain cases, and for other purposes therein mentioned,” (Acts 1856, page 233,) contains also the dormant judgment Act. In our judgment this is not the fact. The Act of 1856 says nothing about dormant judgments. It has a provision, it is true, prescribing that after seven years, without an entry, a judgment shall be presumed to be satisfied, but, as will appear hereafter, this is entirely a different thing from the provision for dormancy. In a very fair sense, a provision that a judgment shall be presumed satisfied may be called a “Statute of Limitations,” since a judgment thus situated cannot be revived nor sued upon.
It may be remarked, too, that this Act of 1856, by its very title, “ for other purposes,” intimates that the Legislature well understood that the Act covered other things than Statutes of Limitation. The language of this Court in several cases has been referred to as sustaining the view that the dormant judgment Act may be fairly covered by the words “ Statutes of Limitation.” In these cases this Court speaks of this Act as “ limiting” the operation of the judgment, of the “running of the Statute,” of the “period of limitation,” etc., etc. It would be a very severe criticism to require
“ Statutes of limitations ” are, then: first, Acts limiting the time within which actions shall be brought; and secondly, they are based upon presumptions arising from lapse of time, which may be rebutted by showing an acknowledgment by the defendant, or proving the plaintiff under a disability to sue. Acts regulating proceedings at law, as the time limited for entering an appeal, or staying an execution, or serving a notice, and suck like, and Acts regulating the rights of two persons against a third, as to preferences between them, though they limit the time within which certain acts shall be done, do not come within these ideas of statutes of limitation. They are not Acts limiting the time within which actions or proceedings shall be commenced in a court of justice, nor are
In our judgment, the Dormant Judgment Act fulfils neither of the requisites of a “statute of limitations.” It does not limit the time within which proceedings shall be commenced in a court of justice, nor is it intended to protect the defendant by enforcing the presumptions arising from lapse of time. On the contrary, it is for the protection of the rights of third persons, and is based upon the justice of requiring the plaintiff in a judgment to let innocent purchasers of the defendant’s property, and other creditors, know, once in seven years at least, that he claims his judgment as a subsisting one. The essential characteristics of a judgment are not at all altered by its dormancy. It is still a debt of record, it is still the legal declarations of the rights of the parties; it still imports verity. As again.-1 the defendant, it is not even presumed to be satisfied, since it is revived as a matter of right, unless the defendant show good cause to the contrary. Indeed, as against the defendant, its dormancy only affects a judgment, so far as that it cannot be enforced by execution, until he has been furnished with an opportunity to show that it is not satisfied.
I am aware that it is often said that a. dormant judgment is presumed prima facie to be satisfied ; but in favor of the defendant, even this is not so. A prima facie presumption is
By the common law, judgments took lien on the property of the defendant from their date, but unless the judgment was renewed, upon the Court roll, within the year they became dormant, in a year and a day, and lost their lien. They were still good judgments, but they had no lien. They were like judgments in equity, rules absolute against the sheriff, and other judgments not capable of being enforced by levy and sale, until the defendant was called upon to show cause why this lien should not re-exist, why the judgment should not be enforced. Unless execution issued in a year and a day, the judgment became dormant, and execution could not issue without scire facias. ' But if an execution issued, though it was not returned, yet if, from term to term, the plaintiff caused an entry to be made on the roll, “ vice comes non misit breve,” the judgment still subsisted as an active judgment, kept its lien, and might be levied. Tidd’s Practice, 1003, 1106 Bacon’s Abr. Tit., Sci. Fa., C. 1; Welden’s case, 1 Keb., 159; 7 Mod., 8; 12 Mod., 377; Lewis vs. Smith, 2 Ser., and Rauls. Obviously while one object of these rules was to prevent a surprise to the defendant, yet the paramount intent was to require the plaintiff constantly to renew, to purchaser and other judgment creditors, notice
Under the Act of 1811, even with the precautions provided by the Act of 1810, in requiring the sheriff to keep and file in the Clerk’s office a docket of his actings, great frauds were practiced. The title of the Act of 1822, as to this subject, is “To prevent a fraudulent enforcement of dormant judgments,” and the preamble recites that “ dormant judgments are collusively kept open or made the instruments of fraud, and often operate oppressingly on vigilant and bona fide
Who can read this brief sketch of the history of the law on the subject without coming irresistibly to the conclusion that the dormant judgment law was intended, not so much to regulate the rights of the plaintiff and defendant, as to protect third persons ? Indeed, the preamble to the Act of 1822 implies that the object was to prevent the plaintiff and defendant, by fraudulent collusion between themselves, from getting the advantage of innocent third persons. The point of the Act is, that the plaintiff, once in seven years, at least, shall so use his judgment as that the proper officer has a return to make to the Court, an entry to put upon the fi. fa., transcribed upon the docket, filed at the first day of the term in the Clerk’s office, there to remain (Act of 1810) for the inspection of all parties concerned. Let it be remembered, too, that the thing required to be done was to have a return upon the execution. Not as has been argued, that the plaintiff must proceed with his execution, do something. The words are, “a return” by the proper officer, etc. Now, anything is a “ return ” which is a reply to the mandate of the Court requiring the officer to make the money. An entry of a levy of payment, satisfaction, are each returns, and show action. A return of no property, of the dismissal of a levy, of the postponement of a levy, have each been held by this Court as sufficient. And doubtless, any entry by the sheriff, which would be a reply to the mandate of the Court contained in the writ, would be sufficient, as an entry that the defendant had resisted the execution of the process, or that the plaintiff had ordered it delayed, anything which the
We conclude, therefore, that the dormant judgment law is not a “ statute of limitations,” that it is not based upon the presumptions arising from lapse of time, but that it stands upon the footing of those Acts which fix a period within which acts shall be done, in order to regulate the rights of two persons with reference to a third, as the Registry and Lien Laws, and that it was not suspended by the Acts suspending the Statutes of Limitations.
The Act of March 6th, 1866, differs somewhat from the other suspending Acts, as it suspends “ all Statutes of Limitations relating to liens affected by this Act.” Admitting, for argument’s sake, that by this Act the Legislature probably intended to suspend the Dormant Judgment Act, (though the language is very inappropriate for the purpose,) the reply is, as we think, conclusive that this Act has been solemnly pronounced by this Court null and void, as in violation of the Constitution of the United States. It is immaterial whether the Court was right or not. It is a judgment by
The Act of March 6th, 1866, expressly only suspends the Acts referred to, so far as they are affected by that Act. Now this Court has held that the Act of March 6th, 1866, never was the law; it was void; it had no force; it effected nothing. Aycock vs. Martin, 37 Ga., 124.
The strange doctrine has been advanced here that even unconstitutional law is good while it stands; that the citizen may act upon it with impunity, is perhaps true, but that he can acquire rights under it, as to third persons, or that he can be excused, by virtue of it, from duties due to others, so as to save rights to himself dependant upon these duties, is not true. A Court might hesitate to punish its officer for failing to ignore an unconstitutional law, because in such cases it acts in its discretion, but it would be absurd to insist that a man can acquire rights under a void law. This very point was ably discussed before the Supreme Court of Pennsylvania, and decided adversely to the claim of such vitality for a void law. In that case, the Supreme Court of the State had declared a certain statute constitutional; while this decision stood unreversed, the Statute of Limitations was running against a claim which Carey had against Hudson. Subsequently the Supreme Court of the United States reversed the decision of the State Court, and it was contended that whilst the decision stood, as it was the law defacto of the State, and it would have been folly for Carey to sue, the statute did not run. But after solemn argument the Court decided otherwise. Hudson vs. Carey, 11th Ser. & Rawle. Every man must take notice, at his peril, as to what is the law.
The Constitution is irrepealable, and any law in violation of it is void — is null; rights cannot grow up under such a law. The right which A gets under the Constitution, cannot be put aside by rights acquired by B under a void law. The doctrine is simply absurd, and confounds what a kindhearted Judge might do in fixing a penalty with what the same Judge would be bound to do in deciding as to the rela
The argument in favor of the plaintiff in error, based upon what is claimed to have been the common understanding, does not, it seems to me, merit deliberate notice. The meaning of so well understood a phrase as the “ Statute of Limitations,” when used in a statute, and when that meaning is sought for by a judicial tribunal, is not to be ascertained by the general understanding. The use of it, in law books and statutes, and its meaning, as used by persons acquainted with the science, of which it forms a part, is the only meaning that a Court ought to notice. Nor is it, in my judgment true, that any large class of any profession, much less of the lawyers, have, in the past, considered the dormant judgment Act a statute of limitations. It is veiy strange that, though dormant judgments and the rules by which that dormancy is determined and statutes of limitations are both phrases which, for centuries, have been in familiar use in law books and by lawyers, there is not to be found in any Digest, Index, or Treatise, an instance in which they are classed together. The several objects sought by the statutes in reference to the two things are wholly different; they are based on different principles, and have relation to different classes of persons.
It is, too, a significant fact, that, in the trial of this case below, although General Toombs, Judge Stephens, Mr. Pottle, and other distinguished gentlemen were engaged, and though no less a jurist than Judge William Reese was upon the bench, it does not seem to have occurred to any of them that the Act of November, 1860, or any of the suspending Acts up to that of March 6th, 1866, had any bearing upon the case. The thought that the dormant judgment Act was, covered by the simple phrase, “ Statute of Limitations ” was not mentioned, as we learn from the record in the Court below. It was reserved for the astuteness of counsel from another circuit to suggest the idea. We admire their ingenuity and the fertility of their minds; but this single fact is a reply, and a conclusive one, to the claim that the general
Another very singular suggestion has been made in favor of the plaintiff in error. It is said that by section 1935 of the Code, creditors are to be favored, and that laws are to be construed so as to aid them in attaining their rights. Very true. But what has that to do with this case ? Here are two creditors, and the question is, which is to be preferred ? The view of the law we have taken has but very small reference to the relations of debtor and creditor. The questions which arise under the dormant judgment Act are almost exclusively between creditors and innocent purchasers, or between one creditor and another, and nothing is better settled than, that innocent purchasers are to be favored; vigilant creditors, too, are to be preferred to those who lie by, to trap the unwary, and who sleep, in slothfulness, until some active rival flushes the game, when they are very ready to be in at the death.
It is not necessary in this case to decide, whether this judgment can be revived. We are inclined to think it can; at any rate, we are of opinion that any statute limiting the time within which it should be revived, would be a Statute of Limitations, and would be covered by the Acts suspending those statutes.
Judgment affirmed.
Concurrence Opinion
concurring.
1. By section 2683 of the Code, it is declared that, “no judgment hereafter obtained in the Courts of this State, shall be enforced after the expiration of seven years from the time of its rendition, when no execution has been issued upon it; or when execution has been issued, and seven years have expired from the time of the last entry upon the execution, made by an officer authorized to execute and return the same, such judgments may be revived by scire facias, or be sued on within three years from the time they became dor- • mant.”
But the portion of said section which relates to the lien of judgment, is not, in any legal sense, a statute of limitations, and was no more suspended by the Act of 1860, or the subsequent Acts suspending the Statute of Limitations, than a mechanic’s lien, which he may enforce, on condition that he commence proceedings within a limited time. Taken in' connection with section 3525, it imposes certain conditions on a plaintiff in judgment, upon compliance with which he may maintain his lien. These conditions are: in case the defendant has sold his property to a bona fide purchaser, for a valuable consideration, who is in possession, that the plaintiff must have a levy made on the property, if personal within two years, if real within four years, or the lien is discharged. And if he fails to have an execution issued within seven years from the date of the judgment, or after the execution has issued, if he fails to have an entry made upon it by the proper officer for seven years, he loses all lien upon the property of the defendant, no matter in whose hands it ■ may be. But in such ease, the right is not barred, the judgment still lives, litigation is not at an end — there is no repose. The plaintiff may at any time within three years revive the dormant judgment, by the proper proceeding, and restore it to all its vitality and vigor, with lien upon the property of the defendant from the date of its renewal, and by having the proper entry made upon it once in every seven years he may keep it, in life, for an indefinite period of time, without any limitation whatever.
2. It is no statute of limitations, in the proper legal sense, because none of the disabilities which stop the running of the Statute of Limitations in any way affect the condition
3. But it is insisted that the Act of 1866, known as the " Stay-law,” expressly suspends the Statute of Limitations as to liens. So it does. But what liens ? All liens, says the statute, affected by that Act. This Court, whether its judgment was right or not, has declared the Stay-law unconstitutional and void. It is very clear that the Legislature only intended to suspend the Statute of Limitations as to liens, as long as the Stay-law remained legally in force, and no longer. Under the ruling of this Court, the Stay-law was never legally in force for a single day. It therefore never affected any liens, and as the Statute of Limitations was only suspended as to liens affected by it, and none were affected by it, the statute was suspended as to none. The Stay-law having been declared null and void, it is, in law, as if it had never been passed, and creditors are no more entitled to claim legal rights under it now, than debtors were when it was brought before this Court and set aside in the interest of creditors.
See dissentient opinion of Warner, J., in Chapman vs. Akin, ante.