Garner v. Hays

3 Mo. 436 | Mo. | 1834

Wash, J.,

delivered the opinion of the Court.

Hays, the defendant in error, sued Garner, the plaintiff in error, in the Circuit Court and had judgment for his debt and costs. Garner paid Hays the amount of his debt recovered, and refusing to pay the fees of the Clerk as taxed in his fee bill, moved the Circuit Court to re-tax the costs: pending this motion to re-tax the costs, and after the expiration of the year and a day from the rendition of the judgment, a scire facias was sued out to revive the judgment; a motion was made to quash the scire facias, which was overruled; and it was adjudged by said Court that said judgment as to the eosts recovered therein should be revived against said defendant; and Garner now prosecutes his writ of error to reverse this judgment on the scire facias. The errors assigned are,

First. That the scire facias was not legally served on the defendant.

Second. That there is no law of this State authorizing a scire facias to revive a judgment.

Third. That there was a motion depending and undecided in said Court, for relaxing the costs in the original suit, and by the plaintiff’s own showing, the amount of the judgment and interest in said suit was paid.

Fourth. That there was no declaration on the scire facias.

Fifth. That the judgment is too vague and uncertain, not being for any certain and specific sum.

Sixth. That there was no issue joined on the plea of payment which had been filed by the defendant to the scire facias.

As to the first error assigned, the writ was served in the mode prescribed in the statute, in the presence of two respectable persons of the bailiwick, &c.

As to the second error assigned, there is no force in the argument, that at common law, the scire facias was not allowed, and that the statute of 13 Edward I, in aid thereof, is not to be regarded as the law of this land; the reverse thereof is the truth.

There is nothing in the third error assigned. The judgment does not in any way affect the motion to re-tax the costs. Only such 'costs as were legal and proper could have been recovered under the original judgment, and such only are recoverable by execution on the judgment as revived: and this answers the fifth error assigned, for the object was to have execution, according to the form and effect of the original judgment, and there was no need of more precision in the scire facias than was in the judgment. A judgment for costs generally is good. That is considered as ..tc'ertain which may be rendered so. On a scire facias to revive judgment, no declaration is deemed necessary, and the fourth error assigned is therefore without force. % As to the sixth error assigned, the want of a similiter has been often held to be no ground for reversing a judgment. Upon the whole, therefore, the Circuit Court did right'in refusing to quash the scire facias, and giving judgment as to the costs recovered in the. original suit, and its judgment is therefore affirmed, with costs.