23 Or. 163 | Or. | 1892
(after stating the facts). — At common law no execution could be issued upon a judgment after the expiration of a year and a day, unless an execution had been taken out and returned during that time. When this had not been done within that period, the judgment became inoperative or, as it is usually called, dormant, and so continued until it was revived by a writ of scire facias. This is a writ founded upon the judgment, the object of which is to obtain authority to have an execution issued thereon; and ordering the defendant to show cause, if any there be, why such execution should not issue. The writ presents the plaintiff’s whole case, and constitutes the declaration to which the defendant must plead. It serves the double purpose of a writ and deciaration, and as its object is to revive a dormant judgment, and not create one anew, it is not an original process but a judicial writ. While scire facias is not an original process by which an action is commenced, it is considered to be so far original that the defendant may plead to it: Winder v. Caldwell, 14 How. 434. Lord Coke said that a scire facias is to be “accounted in law in the nature of an action,” because the defendant could plead to it, and so the books have often said since; but the facts it recites assert no cause of action beyond or back of the judgment upon which it is based: Co. Lit. 2906; Fenner v. Evans, 1 Term, 268; Bilbo v. Allen, 4 Heisk, 31. A scire facias cannot therefore be regarded as a new or an original action, when the plaintiff is not required to file any new declaration or rule the defendant to plead, and when no new judgment is rendered on it, but it is merely a continuation of the old one. Referring to the fact that scire facias is sometimes spoken of as a new action, Mr. Freeman has well observed that “the object sought and the result accomplished by a scire facias to revive a judgment, both show that it is not a new action, but merely a continuation of the old one; no cause of action beyond
Turning now to section 295, we are to inquire whether its provisions were intended as a substitute for the writ of scire facias to revive a dormant judgment only aiming to accomplish the result sought by it; or to provide an essentially different remedy, which, in substance and effect, is a new action, and the result to be obtained by it, a new judgment, and which is to be pursued exclusively, rendering any execution issued five years after
It will be observed that the mode of procedure by motion to revive a dormant judgment is adopted, so far as applicable, as in actions at law. It prescribes the mode to be pursued to obtain leave of the court to issue execution and secure the fruit of the dormant judgment, and if the result sought to be accomplished by the motion is the same as was obtained by scire facias, the mode does not affect the substance, and the motion was intended as a substitute for it. A glance at the subdivisions already set out will be sufficient to show that the motion, like the writ of scire facias, is a proceeding designed to make the parties interested show cause, if any there be, why an execution shall not issue, or the dormant judgment shall not be revived. There is no substantial difference between them, and the fact that this result can be as readily obtained by a motion and order as by a writ of scire facias fixes their identity, and indicates that the former was intended as a substitute for the latter. As Mr. Freeman says: “Practically, a writ of scire facias is nothing beyond a notice to the parties in interest that the applicant will, at a stated time, apply for a writ of execution, which notice is accompanied by a statement of the grounds upon which the application will be based.” But he adds: “A notice prepared and signed by the plaintiff or his attorney, and served by a copy on the defendants in the suit, if living, or on their representatives, if dead, would accomplish every useful purpose accomplished by the writ; while the order of the court, made after hearing the
It is insisted, however, that section 295 prohibits the issuing of an execution in any other mode, or upon any other conditions than those prescribed; that negative words are employed which render the section mandatory. 'The section provides: * * * “An execution shall not issue except as in this section provided. 1. The party in whose favor a judgment is given shall file a motion with the clerk of the court where the judgment is entered for leave to file an execution. * * * 2. At any time after
Looking at the previous state of the law, it is plain that under either the former or present statute, the inten tion was to prescribe a mode of proceeding which was to be pursued in such case, but not to affect the jurisdiction in case there was an omission to follow the mode of procedure as prescribed. At common law, if an execution was not taken within a year and a day, it could not be regularly issued thereafter without reviving the judgment by scire facias; yet it was invariably held that an execution taken out after that time, and without scire facias or judgment of revivor, was not void but only irregular. The defendant mighi interpose and set it aside upon motion, but if he neglected to do so, it was considered an implied admission that the judgment was still in full force. The application of this principle finds its illustration in Mariner v. Coon, 16 Wis. *468, where the question presented was, whether an execution issued upon a dormant judgment without leave of court is void or only voidable; but where it was insisted, as here, that the statute, in providing that “an execution can be issued only by leave of the court, upon motion,” rendered void any execution not issued except in the mode prescribed, the court says: “But the Code (sections 192 and 193 of the original act, now sections 1 and 2 of chapter 134, revised statutes) prescribes a different practice, and it is upon this that the counsel for the defendant chiefly relies. When the execution in controversy was issued, the period was fixed at two years from the entry of judgment. It is now enlarged to five. After that period has elapsed, it is provided that ‘an execution can be issued only by leave of the court upon, motion,’ etc. This language is said to take away all power, except it be acquired in the manner prescribed, and to render every process issued in contravention of it void for want of jurisdiction. Were we to suppose the legislature to be speaking with reference to the question
This view is supported in Bank of Genesee v. Spencer, 18 N. Y. 154, where the language of the statute was that ‘ ‘ an execution can be issued only by leave of the court, upon motion with personal notice, ” etc., the court saying: ‘ ‘ There was always a time after which the party who had recovered judgment was not at liberty to sue out execution without an application to the court. Formerly the time was a year and a day; and the form of obtaining an award of execution when one had not been issued in time, was by scire facias quare executionem non. Afterwards it was extended by the Revised Statutes to two years. By the Code it was further extended, as we have seen, to five years, and the mode of obtaining leave was an application to the court on motion. Under the former practice, it was well settled that the execution, if issued too late, was not
While it is true there are some courts which have declared executions issued without an order of the court void, Mr. Freeman expresses the opinion that “these decisions are in the main based on a misconception of the rules generally applied at common law to executions
It results that the judgment must be affirmed.