Marx v. Sanders

98 Ala. 500 | Ala. | 1893

WALKER, J.

The first count of the complaint having been withdrawn, the only cause of action relied on was the one stated in the second count. The appellee now contends that that count is upon the judgment rendered by the justice of the peace on the scire facias, and not upon the original judgment. Construing the pleading most strongly against the pleader, it must be concluded that the plaintiff’s alleged right to recover is predicated upon the original judgment. The amount sued for is claimed as “due by judgment .... rendered on June 7th, 1884.” That was the original judgment. The clause immediately following the particular description of that judgment, and forming a part of the same sentence, “and revived and rendered against the defendant in favor of the plaintiff in the said court by the said justice of the peace, on June 21st, 1886” —merely amounts to an allegation that the judgment sued on had been revived. The intention is not disclosed to rest the right to recover on the order made by the justice of the peace on the application to revive the original judgment.

The result would not be different if the suit is regarded as one on the judgment as revived. The following is the provision of the statute on the subject of the revival of the judgments obtained before justices of the peace, when the time has elapsed within which executions thereon may issue: “When execution has not been thus sued out, no execution can issue until the defendant is notified to appear at a time and place designated by the justice, and show cause why the plaintiff should not have execution of his judgment; but no judgment can be revived after the lapse of five years from the rendition thereof, or from the issue of the last execution thereon.” The purpose of the proceeding there provided for is merely to continue a former suit to execution. No new judgment for debt or damages can be rendered on the scire facias, but the old one is simply called into action by a judgment that the plaintiff have execution. —Baker v. Ingersoll, 37 Ala. 503. The object of the proceeding is not to obtain a new judgment for a debt, but to enable the judgment creditor to enforce by execution the judgment he has already obtained.—Frierson v. Harris’ Heirs, 94 Amer. Dec. 222, note. The fact that a legal 'duty or liability exists in favor of the plaintiff against the defendant was determined by the original judgment. Before the plaintiff is afforded another opportunity to enforce that already determined duty or liability by execution, the defendant is afforded an opportunity to show that it has been discharged by release or otherwise.—Shelley v. Graves, 29 Ala. 385. The order to revive does no more than reinvest the plaintiff with the right to have execution of his original judgment. His cause of action against the defendant is the original judgment, not tbe order to revive. The order merely confers upon the plaintiff the statutory right to issue executions on the judgment after it had become dormant for that purpose. The common law right to sue on the- judgment is not enlarged or made to accrue anew by force of the order.

This court has recently decided that the date of the accrual of the common law cause of action on the judgment is not postponed by the issue of executions under the statute. Field v. Sims, 96 Ala. 540. It is plain that a new lease of life is not given to that cause of action by merely affording to the plaintiff the opportunity of resorting to the cumulative and independent remedy for the enforcement of the judgment by means of executions upon it.

As the plaintiff’s right to maintain the suit must be rested upon the original judgment, and not upon the order to revive, and as nearly eight years had elapsed from the date of the entry of that judgment, the suit was barred by the statute of limitations of six years.—Code, § 2615; Field v. Sims, supra.

Reversed and remanded.