| Mich. | Oct 24, 1865
Jerome, on the 10th of March, 1855, signed an instrument to operate as stay of execution on a judgment by confession, entered the same day, in favor of Williams against O' M. Hyde and J. L. Conger. Successive executions were returned unsatisfied before the Justice, who, on June 20th, 1860, certified .a transcript of the judgment, which was filed in the County Clerk’s office. The stay of execution w;as not then filed, and an execution was issued by the Clerk on the transcript against all parties, and returned unsatisfied September 6, I860.. Subsequently, but when, does not appear, except that it was between September 12th, 1864, and February 15th, 1865, the original stay appears on file in the Clerk’s office, with an endorsement, “filed as of June 23, 1860, by order of the Court. Henry Starkey,. Deputy Clerk.,”
It was suggested that a certiorari, would not lie on such an order, but that being the decision of a common law Court, it can only be reviewed on error. The proceeding, however, is a summary proceeding not in com-on law form, and may be had at chambers as well as in Court. Wo think there is no ground for the objection.
It is claimed in behalf of Jerome that this stay never was lawfully in the Clerk’s office, and also that after this lapse of time any proceeding upon it is barred.
The statute providing for filing transcripts requires the Justice to give to the plaintiff a certified copy of the proceedings, “ together with the original security for stay of execution.- — -2 G. JO., §8186. The Clerk is required, upon receiving an affidavit of the amount due, to file the “ transcript and security,” and to “ enter and docket the judgment.” “ Such judgment shall have the same effect as a judgment rendered in the Circuit or District Court, and may, in the same manner, be enforced, discharged, and cancelled; and execution may be issued thereon against both the surety and the person' against whom, the judgment was rendered, or either of them, in -the same manner as if execution were to be issued by the Justice.” — 2 C. L. §3181-8.
There was not, under the statutes of 1846, which were in force when this stay was filed, any provision requiring any judgment to be entered on a' stay. Execution might be issued on it, but it was not in any way made to assume the form of a judgment entry, and when sent up it was not a part of the transcript, but was. filed as a separate document. While these statutes were in force, it was held to be so far distinct that the
It is worthy of some consideration whether a party who files a transcript only, and proceeds on that, can subsequently file the stay. Such a question cannot easily arise under our present laws, which declare expressly that the entry of stay shall have the effect of judgment, so that the transcript will always include this. — 2 C. L., §3804. — But if it be not a judgment, then there is no law which undertakes to vary its effect from what it was in the Justice’s Court, except so far as a Circuit Court execution reaches property not reached by an execution from the inferior Court.
The case then presents this position: It appears that until September 12, 1864, and how much later is uncertain, the stay had lain dormant. No suit had been brought upon it, and more than six years had elapsed since the last execution on it had been returned unsatisfied. There can be no question but that it was barred by the statute of limitations, so that no action would lie upon it, being a simple writing. — 2 G. D., §5361.— Had it been an ordinary Justice’s judgment it would have been barred by the same section. This proceeding to renew an execution is, in effect, so far as this stay is concerned, an attempt to establish a claim which could not be sued upon because barred by time. This summary proceeding is a substitute for a scire facias, and does not differ in its nature from a formal action. The scire facias, in personal actions, was only a substitute itself for an action upon judgment. — 2 Bist., 469. — We think, therefore, that where the delay in issuing execution has rendered it necessary to apply for leave, the Court can not properly grant it where such
The order of the Court helow, in so far as it allows an execution against Jerome, must he quashed with costs.