30 Miss. 21 | Miss. | 1855
delivered tbe opinion of tbe court.
On tbe 28tb March, 1838, tbe plaintiff in error recovered a judgment against tbe defendant, on wbicb a writ of fieri facias was issued in July, 1838, and levied on a stock of goods, wbicb, by agreement, were not sold under tbe execution. An alias fieri facias was issued in 1841, wbicb was also levied on a stock of goods, but no sale was made, and tbe execution was indorsed by tbe plaintiff’s attorney, that it was “ held up by request, and that no sale of property was to be made, nor other execution issued until further orders.” No other execution was issued. On tbe 13th January, 1851, a scire facias in tbe usual form was issued to revive tbe judgment; to wbicb tbe defendant pleaded payment, and upon that issue, tbe case was tried at May term, 1852, and a verdict found for tbe plaintiff, for tbe amount of tbe principal and interest of the original judgment, and a judgment quod recuperet rendered thereon. At tbe same term, tbe defendant moved tbe court to set aside tbe verdict and judgment, and to quash tbe scire facias, because it was issued without authority of law — wbicb motion was sustained, and tbe plaintiff excepted, setting forth tbe facts as above stated, and has prosecuted this'writ of error.
Tbe first point raised on behalf of tbe plaintiff in error is, whether it was competent for tbe court to set aside tbe verdict and judgment, after tbe case bad been tried upon tbe issue of paymeht.
It is contended, that tbe defendant, by placing bis defence solely on tbe ground of payment, waived all objections to tbe regularity of tbe scire facias, or that tbe defects in it are cured by tbe Statute of Jeofails. This may be true, with regard to tbe defects in tbe scire facias. ■ But if tbe verdict and judgment were such as were not warranted by law, in such a proceeding tbe particular defence set up and found against tbe defendant, could not justify such verdict and judgment, and it was proper for tbe court, wbicb bad control of its own proceedings and judgments, during tbe term, to set them aside upon motion. Such a state of case, is not within tbe Statute of Jeofails, wbicb applies only to judgments, regular on their face, as tbe case -is presented by tbe record, and justified by tbe established practice, in tbe particular case. And
The scire facias was in the usual form to revive a judgment between the' original parties to it, calling on the defendant to show cause, why the plaintiff should not have execution. On such a writ, the practice in England, under the statute of Westminister 2, is well settled, that the proper judgment is merely an award of execution. And the same practice has been established by most of the courts in the United States. It is justified by the nature of the proceeding, which is but a continuation of the former action, in order to enforce the former judgment, and by the demand of the writ, that the plaintiff may have execution. We do not think that the statute of 1822, Hutch. Code, 826, § 9, authorizing the revival of judgments by scire facias, changed the nature and legal effect of such a writ from what it was under the English statute, or that any thing more was contemplated by our statute, than to give a party the right to have execution of his original judgment, by means of the writ of scire facias. The evil intended to be remedied was the inability of the plaintiff to proceed upon his judgment, by reason of lapse of time or other impediment to his execution; and the remedy provided was to “revive” the judgment by scire facias, that is, to restore its original force, and cause it to be carried into execution. This manifestly contemplates the enforcement of the original judgment, and not the rendition of a new one by means of the scire facias.
We therefore think that the court acted properly in setting aside the verdict and judgment.
The next question is, whether it was error for the court to quash the scire facias.
As to the attitude of the case, at the time this order was made, after the verdict and judgment were set aside, the case was as it stood before the verdict; and though it would have been more formal to have the objections to the scire facias set up by way of plea and defence, we do not think it was error for the court to consider them onhnotion. Eor no prejudice was done to the plaintiff thereby, further than would have been done, if the defendant, after setting aside the verdict and judgment, had applied for leave
"Was the scire facias maintainable, then, under the circumstances of the case ?
It ajopears that after the rendition of the original judgment, executions were issued, which, upon well settled rules, rendered it unnecessary to resort to a scire facias to revive the judgment by reason of lapse of time. And there was no change of parties rendering such a course necessary.
The ground upon which the necessity for the scire facias is placed by the counsel for the plaintiff in error is, that the executions issued in the case, had been levied on chattels of the defendant, and that this, in legal presumption, was a satisfaction of the judgment. But this levy was no obstacle to the plaintiff’s execution. He might have issued his venditioni exponas to sell the property levied upon — a course altogether proper, and open to the plaintiff. If upon such a writ, the property was not to be found, (and it is shown by the record not to have been sold,) or upon a sale, was insufficient to satisfy the judgment, the plaintiff could have had his fieri facias de novo. Thus the plaintiff’s right to enforce his execution, was entirely unobstructed, and the writ of scire facias was altogether useless and unnecessary. The law does not countenance vain and useless things, especially when unnecessary costs must be the result of the abuse of its process.
We perceive no error in the judgment, and it is therefore affirmed.