220 S.W. 767 | Tex. | 1920
The suit was instituted by the Collin County National Bank against J.A. Hughes in the District Court of Dallas County, April 14, 1908, on a judgment recovered, June 26, 1891, by the bank against Hughes in the Circuit Court of the United States *367 for the District of Colorado, revived on scire facias, December 16, 1907.
Hughes had been a resident of Texas for more than ten years preceding the institution of the suit in the District Court of Dallas County.
The history of the judgment sued upon, briefly stated, is this:
The bank originally recovered a judgment, February 21, 1891, in the District Court of Collin County, Texas, against a corporation and its receiver as principals and Hughes as surety, for a stated amount. Execution issued on this judgment March 9, 1891, and as to the defendant Hughes was returned unexecuted. No further execution ever issued on this judgment. Thereafter on Hughes' moving to Colorado the bank sued him there on the judgment and recovered a judgment against him on personal service, June 26, 1891, in the Circuit Court of the United States. On this judgment execution issued December 14, 1891, and was returned April 20, 1892. No other execution was ever issued upon the judgment.
Petition for revival of the judgment was filed, December 16, 1902. Writ of scire facias issued but was returned unserved, Hughes having moved from Colorado to Texas in September, 1896. The court thereupon ordered service of the writ by publication, and the publication was made in accordance with the order. Afterwards, Hughes made a special appearance for the purpose of quashing the service, and on his motion it was granted. Appeal from this order by writ of error was taken by the bank to the United States Circuit Court of Appeals, which dismissed the writ of error because the judgment was not a final one. 152 Fed., 414.
The bank thereupon, on October 12, 1907, filed in the United States Circuit Court for the District of Colorado a new petition for scire facias, seeking to revive the judgment, Personal service of the writ was had upon Hughes in Texas. Upon such service judgment was entered, December 16, 1907, reviving the judgment of June 26, 1891, and ordering that the bank have its execution against Hughes for its debt, damages and interest according to the form, force and effect of that judgment.
Article 5691 provides that every action upon a judgment or decree rendered "in any other State or territory of the United States, in the District of Columbia, or in any foreign country," shall be barred if by the laws of such State or country such action would there be barred, and the judgment or decree be incapable of being there otherwise enforced, and whether so barred or not, no action against a person who shall have resided in this State during the ten years next preceding such action shall be brought upon any such judgment or decree rendered more than ten years before the commencement of such action. *368
It was fully within the power of the State to prescribe the period of limitation for actions in its own forums upon judgments rendered in other jurisdictions, Federal jurisdictions as well as any other. The statute clearly relates to all judgments rendered without the State of Texas, regardless of the character of the court rendering them. The language could not be plainer. There is nothing about the statute to construe, and there is no warrant for engrafting upon it an exception with respect to judgments rendered by the Federal Courts.
The scire facias proceeding in which the judgment of revivor of December 16, 1907, was entered was either but a continuance of the suit which resulted in the judgment of June 26, 1891, or else a new action for debt upon that judgment.
If the latter, the judgment of revivor was of no effect in the courts of this State, since, if it was a new suit, the court was without the power to render the judgment. There was no appearance by Hughes in the proceeding, and the only service had upon him in its connection was without the jurisdiction of the forum, in another State of which he was at the time a resident.
If the former, the date of the rendition of the original judgment — June 26, 1891 — fixes the time for the running of limitation, and the action upon the judgment was, under Article 5691, clearly barred.
Under any view of the case, therefore, the judgment of the trial court was correct, and its affirmance by the Court of Civil Appeals should be affirmed.
In the Federal Courts the proceeding by scire facias for the revival of a personal judgment is treated as merely a continuance of the original suit. Where the proceeding is so considered there are holdings that jurisdiction duly obtained in the original suit over the person of the defendant will endure for the revival of the judgment, and the giving of reasonable notice to him will support the judgment of revivor. Comstock v. Holbrook,
Where the scire facias proceeding for the revival of a judgment is not so treated, its character is simply that of an independent action for debt — a new suit; and the power to render judgment in the proceeding must depend upon jurisdiction over the person of the defendant as in any other suit.
The judgments of the District Court and Court of Civil Appeals are affirmed.
Affirmed. *369
