Daily v. Burke

28 Ala. 328 | Ala. | 1856

GOLDTHWAITE, C. J.

By the old law, a judgment was a lien upon the lands of the defendant; toft^sy^section 2456 of the Code, lands are placed upon the lame footing with personal property, and are bound only fromfe<Jl.§fefeer§»-of the execution to the officer. In the present |ase, the question is, whether the law of the Code, in thi^’á^MfafF plies to judgments which were rendered before ira^Qgtioft-'

The right of the legislature to exempt lands from the líen of existing judgments, is not questioned; and, as there is an express repealing clause (§ 10) of all acts of a public nature not embraced in the Code, it is clear that the effect of this, standing alone, would be to repeal any previous statute which made judgments a lien upon lands. We do not understand this proposition to be denied; but it .is urged, that the effect of the repealing clause is broken by section 12, which provides that “no action, or proceeding, commenced before the adoption of the Code, shall be affected by its provisions”; that a judgment is a proceeding, within, the meaning of this section; and that consequently, if rendered before the Code took effect, it is not affected by it. We think, however, that the term, as there used,- must be confined to a proceeding that is continuous in its character — pending, and not terminated, when the Code went into operation. The use of the word “commenced” shows, we think, very clearly, that the section referred to was never intended to embrace a judgment, which is an entire act, — an act which could not, in any proper sense, be said to be “ commenced” before a certain day.

It may be necessary briefly to notice the argument of the appellee, based upon sections 2419 and 2420 of the Code. The effect of the first of these sections is, to require a scire facias to revive a judgment on which an execution has not been sued out witbin a year after its rendition, or within ten years after the date of the last execution; and in the last case, the failure to issue the execution, within the prescribed period, is presumptive evidence of the satisfaction of the execution. It is supposed by the counsel for the appellee, that, as judgments existing when the Code took effect are exempted from the operation of this section by the terms of section 2420, such judgments would have the same liens as when rendered; but we cannot admit the sequence. Under the old law (Clay’s Digest, 206-7, § 28), the failure to issue execution for ten years, rendered it necessary to revive the judgment, (Van Cleve v. Haworth, 5 Ala.; Collins v. Boyd, 14 Ala. 505); but such failure raised no presumption of payment, except so far as to bar the issue of execution without a scire facias; and the main distinction between the law of the Code and the old law, was in the effect which the failure to issue execution had as evidence. The main object of section 2420 was, to secure judgments rendered before the Code took effect, upon which no execution had issued for ten years, against a presumption which attached to judgments rendered since the Code upon the same failure. But it was not intended to go beyond this, and to give to the first class of judgments, when revived, a force and effect superior to that which they would have possessed had they been rendered after the Code went into operation.

Judgment reversed, and cause remanded.