Dickinson v. Allison
10 Ga. 557
Ga.
1851
Check Treatment

By the Court.

Nisbet/J.

delivering the opinion.

Wetsee no reason, notwithstanding the excellent argument of the counsel for the plaintiff in error, A. S. Wingfield, to reverse the decision made in this case, as to the effect of the appeal entered by one of the defendants in the judgment. It must stand, therefore, as the law of this Court. See Allison vs. Chaffin, 8 Geo. R. 330.

[1.] The argument for the defendant in error, has, however, induced us to review and reverse the decision in Gallaher vs. Garvin, (1 Kelly, 315,) so far as the judgment in that case conflicts with that now rendered. The scire facias to revive a judgment, must issue from, and be returnable to, the Court where the judgment is rendered. That Court alone has jurisdiction. No other Court can acquire the cause, for the scire facias is but a continuance of the original action. Incident to the jurisdiction, is the right to issue process to bring the defendants before the Court. If the defendant resides in the County, there is no *559question about this right, but it is questioned here, both defendants residing out of the County wherein the judgment was obtained, upon the ground, that by the Constitution, a party in civil cases can only be sued in the County of his residence. We do not hold that this provision of the Constitution is in the way.

[2.] It would be, if scire facias to revive a judgment was a civil case, in the view of the Constitution. Whilst it is in the nature of an action, yet we think it is in continuance of the suit in which the judgment was rendered, and therefore, not an original action; and for that reason, not such a civil case as the Constitution contemplates. This being so, the Court has jurisdiction over the person of the defendant any where within the limits of the State, and may send out its process directed to the Sheriff of the County in which the defendant resides, whose duty it is to serve and return it to the County from which it issued. It issues, as matter of course ; the Clerk acting in this, as in other cases, as the agent of the Court for that purpose.

There is no doubt but that in England, the service of a scire facias to revive a judgment, when the defendant is not found, is by a return of two nihils. There the process searches the kingdom, and it is a legal presumption that the defendant is not in it, when there are two returns of nihil. Not so here. The Sheriff’ of the County where the suit is brought, can only search that County, and two returns of nihil may warrant a presumption that the defendant is not within that County, but are no evidence whatever that he is not in some one of the numerous other Counties of the State. The rule of the Common Law is wholly unsuited to the condition of things in Georgia. The practical effect of it, must be to determine the rights of a citizen, without giving him an opportunity of being heard; a thing which the law abhors. By the Act of 1850, when the defendant is out of the State, service may be perfected by publication, and the Legislature say in that Act, that such service shall be as effectual as if the defendant had been personally served. This shows the legislative view of what kind of service is requisite when the defendant/is within the State. This Act was not passed when *560Gallaher and Garvin was before this Court. See the doctrine as to service of scire facias, very fully discussed in Grimkey vs. Magrant, 2 Brevard’s R. 204. See also, generally, Law Library, July number, 1851, title Scire Facias. Tidd’s Practice, 1106. 9 Johns. 259. 4 Greenleaf, 124, 132. Cobb’s New Dig. 502. 1 T. R. 388.

Let the judgment be affirmed.