Jackson v. Scanland

65 Miss. 481 | Miss. | 1888

Campbell, J.,

delivered the opinion of the Court.

As seven years had elapsed after the 22d December, 1880, and before the 2d March, 1888, when this execution was issued, it was barred by Sec. 2614 of the Code, unless the execution of the 12th December, 1881, saved it from the bar. It did not, because it was not such an execution as is contemplated by the statute, which has in view one issued at the instance of one entitled to enforce the judgment, and who attempts to do it in pursuance of a right to do it. The right to enforce a judgment by execution is preserved as long as a period of seven years is not permitted to elapse after the date of the issuance of the last preceding execution. Inactivity for seven years will bar. The activity required to avoid a bar is that of him who is entitled to enforce the judgment. The provisions for successive executions is in lieu of repeated actions on the judgment, and execution must be in behalf of him who could maintain an action. It is argued that an execution merely voidable and not void is sufficient to avoid the bar, and Nye v. Cleveland, 31 Miss., 440, is cited to support this position, and it is claimed further that the execution of Dec. 12th, 1881, was only voidable, and therefore, on the authority of the ease cited, prevented the bar of the statute. That case holds that the effect of issuing an execution- not a nullity but only voidable, is to prevent the bar of the statute, and it is the established doctrine in this State that an execution issued after the death of the plaintiff or defendant is voidable and not void. But the execution in Nye v. Cleveland, was in favor of one entitled to have execution of the judgment, and was therefore the active effort of the party entitled to enforce the judgment to do it, and came within the statute which makes such effort the equivalent of an action on the judgment, and effective to prevent the bar from attaching. This feature of the case qualified the general language of the opinion, and renders it unobjectionable.

In the case before us, the execution of the 12th December, 1881, was not the effort of one entitled to enforce the judgment. It was the act of one without right or interest, a stranger and an intermeddler, for until the administrator appointed in Arkansas had qualified according to our law, Sec. 2091 of the Code, he had no standing in our Courts, and the execution issued at his instance was as if he did not exist. It was, therefore, the mere act of the clerk, and not the effort of an authorized plaintiff seeking to enforce, as he might lawfully, his judgment, and failing because of some clerical error, as in Nye v. Cleveland. The sort of execution to prevent the bar of the statute is one to enforce the judgment, and, manifestly, it should be the effort of a party entitled to do it, Harris v. West, 25 Miss., 156 : Seavy v. Bennett, 64 Miss., 735. No other can satisfy the statute.

An action by one without right cannot be invoked to interrupt the course of the statute of limitations in any case.

Sec. 1141 of the Code does not entitle an executor or administrator who could not sue in our courts to have execution of a judgment as it provides. Until compliance with § 2091, Scan-land was not entitled to have execution of the judgment, and all that preceded that is as if it had not occurred. It was of no. value for any purpose. It had no effect whatever in preventing; the running of the statute of limitations, which, having commenced, continued to run, and could not be interrupted in its course except by the act of an authorized person endeavoring to enforce the judgment by execution he was entitled to have.

Subsequent qualification by Scanland to sue in our courts did not have relation back, so as to validate his unauthorized attempt to have execution of the judgment when he had no standing in court; for it is settled “ that the facts which constitute the ground of a suit must exist at the time the suit is instituted,” and it cannot be maintained by supplementing it with matter occurring after its institution.

Nor does. § 2686 of the Code embrace this case.

Reversed, and execution quashed.