7 Ga. 393 | Ga. | 1849
By the Court. —
delivering the opinion.
The Act ofJL823, in its title, is declared to be an Act to amend the 3d section of the Act of 1822. It repeals that section, and in somewhat different terms, re-enacts it, with a proviso. It declares, that “ all judgments that have been obtained since the 19th day of December, 1822, and all judgments that may be hereafter rendered in any of the Courts of this State, on which no execution shall be sued out, or on which executions, if sued out, no return shall be made by the proper officer for executing and returning the same,-within seven years from the date of the judgment, shall be void and of no effect: Provided, that nothing in this Act contained, shall prevent the plaintiff or plaintiffs, in such judgments, from renewing the same, after the expiration of seven years, in cases where, by law, he or they wotdd be otherwise entitled so to do, but the lien of such revived judgments on the property of the defendants thereto, shall operate only from the time of such revival. Prince, 458, 451. The substantial difference between the Acts of 1822 and 1823, is this : by the former, in the contingency stated, the judgments are declared void and of no effect; by the latter, they are declared void and of no effect, but with a proviso which gives the right of renewal, in cases where, by law, plaintiffs would be otherwise entitled to renew. A very material difference. The 3d section of the Act of 1822, except as an aid to construction, may be now laid aside, being repealed. The question depends upon the Act of 1823. The object of the Act is attained, by making judgments, upon which no execution has issued within seven years, and if execution has issued, upon which no return shall be made within seven years, incapable of enforcement by execution. Prima facie, such judgments are fraudulently kept open, and lose their efficiency, and if not revived, are forever incapable of enforcement. But by the proviso, they may be revived. Upon the trial of the scire facias, the fraud may be established, if any, and the judgment of revival refused. If granted, the efficiency of the judgment, its capability of enforcement by process, is restored. Still, however, the rights of bona fide vigilant creditors and of honest purchasers, are protected in this, that the lien of the revived judgment dates only from its renewal. It is a Limita
The Stat. West. 2, contemplates judgments upon which no execution has issued. Our Courts have applied the spirit of this Statute to cases of judgments upon which execution has issued, but upon which no return has been made, and as I think, properly. We do not hold that scire facias cannot be had on this judgment— that is not necessary to our judgment — but that debt will not lie.
The defendant in error holds, that by the Act of 1823, the judg* ment is in so many words, in the cases contemplated, made void and of no effect, except that it is not void and of no effect, when the remedy of scire facias is applied to it. The exception he must needs make, else count the proviso for nought. Without his exception, his argument would defeat itself, for then, he would hold that in the general words void and of no effect, the judgment is void for all purposes — unconditionally a nullity; and thus would he defeat the proviso altogether. But why except the remedy by scire facias, and not by debt. Neither arc named in the Act.
Bet the judgment below be reversed.