Field v. Sims

96 Ala. 540 | Ala. | 1893

WALKEB, J.

At common law, an execution was required to be issued, unless the judgment was revived, within a year and a day after the entry of the judgment. — Elliott v. Mayfield, 3 Ala. 223. In Kingsland v. Forrest, 18 Ala. 519, some doubt was expressed as to the right at common-law to sue on the judgment within the year and a day allowed for the issue of an execution upon it. “But,” the court said, “no one will deny that at common law debt may be brought on a judgment after the year and a day has passed.” It was held in that case that a statute giving the right to issue alias executions on the same judgment, within ten years, without a scire facias, did not take away the common-law right to sue in debt on the judgment after the lapse of a year and a day from the date of its entry. DargáN, C. J., said: “The remedy given by the statute is cumulative merely, and a plaintiff may, if his’judgment be not satisfied, sue in debt upon it, although he could, under the statute, issue an alias execution.” The weight of authority is in favor of the view that an action can be maintained on the judgment, although the time has not expired in which, under the common law, an execution could issue to enforce it. 12 Am. & Eng. Encyc. of Law, 119.

Under existing statutes, actions founded upon judgments obtained before justices of the peace in this State are barred by a limitation of six years; while, if an execution has been issued within six months after the rendition of such a judgment, and has not been returned satisfied, another execution may be issued thereon at any time within three years thereafter, without a revival of the judgment; and the right to revive such judgment by scire facias is barred after the lapse of five years from the rendition thereof, or from the issue of the last execution thereon. — Code, §§ 2615, 3363 and 3361. The limitation of six years applies to the common-law cause of action on the judgment itself, and the time is computed from the date when the right to sue accrued. So long as the judgment remains unsatisfied, the common-law right to sue thereon is not suspended by the plaintiff seeking the benefit of a concurrent remedy given him by the statute for the enforcement of the judgment by means of an execution. The provisions as to the time within which executions may issue without a revival of the judgment, and as to the time within which a judgment which has become dormant may be revived so that executions may issue on it, are regulations of statutory remedies for the enforcement of the judgment, which are cumulative and independent of the common-law right to sue on it. The date of the accrual of the common-law cause of action on the judgment is not postponed by the issue of executions under the statute. The limitation of six years applies, though executions have been regularly issued within that time. It follows that a replication setting up the regular issue of executions within that time is no answer in law to a plea of the statute of limitations of six years. In the present case the cause of action described in the complaint was barred, whether the right to sue on the judgment accrued at the date of its rendition or a year and a day thereafter.

The statement in replication 2, that a motion to quash an execution issued upon the judgment, “upon the point, among others, that said execution had been issued on a judgment barred by the statute of limitations of six years,” was overruled, does not show that the question of the bar of the statute was necessarily involved in the ruling on that motion. For anything that appears, the motion may have been properly disposed of on otlrer grounds, not mentioned in the replication. It is not perceived how the question of the limitation of the right to maintain an action on the judgment could be involved in a motion attacking the regularity of an execution under the statute. Certain it is that the replication does not show that the disposition of the motion referred to was an adjudication upon the right of the defendant in this case to avail himself of the benefit of the' plea of the statute of limitations.

There was no error in sustaining the demurrers to the replications.

Affirmed.