Miller v. Shackelford

16 Ala. 95 | Ala. | 1849

CHILTON, J.

This was a proceeding by scire facias to revive a judgment rendered in the Circuit Court of Tuskaloosa county, in March 1827, against the plaintiffs in error. Neither, the sd. fa. nor declaration filed thereon set forth any reason why the- aid of the court is invoked, but merely state the amount and date of the judgment, and that it is in full force and unpaid. The defendants appeared, and said John Miller pleaded separately, as well as jointly with said George, the following, pleas, to which demurrers were sustained, viz': 1-That the plaintiff ought not to have execution upon his judgment, because, before the commencement of the action om which the judgment was rendered, and from thence uutil after' the rendition of said judgment, he was a resident and citizen: of the State of South Carolina, and not of the State of Alabama,. and that no process whatsoever was served on him in( said action, either upon his person or his property, hor did this court acquire jurisdiction of said defendant in said action by attachment, garnishment, or in any other manner whatsoever;, that he did not appear in said action, or defend, either by himself or his counsel, and so he says, the- judgment as to him is null and void. 2. The second plea alleges that the plaintiff anterior to. the judgment- now sought to be revived, agreed under seal to release and discharge the defendant from the debt, in consideration that he would assign over to plaintiff notes and accounts equal in amount to one half of said demand, with which, agreement the- defendant complied, &c. Upon the' other pleas of payment and the statute of limitations, issues were joined,, and a judgment was rendered for the plaintiff below.

The pleas in this case we regard as manifestly bad. The' first calls upon the court to re-examine its own judgment rendered some twenty years previously, and to ascertain whether the record does not falsely certify that the defendant was be-fore the court. Where1 a year and a day have elapsed after' judgment, without the issuance of execution1,-the law presumes that the judgment has been executed, or that the plaintiff has-released the execution; hence the party is required, before he can proceed on his judgment, to» revive by scire facias. Clay’s Dig. 207, § 29. Under the-statute of Westminster 2, (13 Edw. 1,) c. 45, authorising a similar revival of judgments, where no execution had issued within a year and a day, the proceeding by scire facias quare executimem nm, is regarded as interlocutory, and in the nature of process,! being' but a continuation of the original proceedings in the cause, (2 Archb. Pr. 76); and it is a rule of very general, -if not of universal application, that the defendant can plead no matter to the scire facias which he could have pleaded in the original action. 2 Tidd’s Pr. 1130; Cro. Eliz. 283; 1 Salk. 2; 2 Stra. 1043; McFarlain v. Irwin, 8 Johns. R. 77. In such case, the party may plead nul tiel record,, payment, release, or that the judgment has been levied on a fieri facias, or that his lands have been extended upon an elegit. He is not permitted, however, to gainsay the judgment, even though it was confessed on warrant of attorney, which was without consideration. See McFarlain v. Irwin, supra, and cases there cited; also, Greene v. Onington, 16 Johns. Rep. 55; Griswald v. Stewart, 4 Cow. Rep. 457; Hatch v. Eustis, 1 Gallis. C. C. Rep. 160.

If the sheriff has made a false return upon the process in the original cause,die is liable in damages for the injury; and if, under such circumstances, an iniquitous judgment is attempted to be enforced, a court of equity would afford the defendant effectual relief. Givens v. Tidmore, 8 Ala. Rep. 745, and cases there cited.

But although the pleas demurred to were evidently bad, yet upon the principle that the demurrer reaches back to the faulty pleading of the party demurring, the sci.fa.-in our opinion was-defective, and must fall with them. The plaintiff, to entitle himself to the writ, must bring himself within the provisions of the statute authorising its issuance. The sd.fa. should set forth the grounds upon which it seeks the aid of the court; it is not every unsatisfied judgment which may be made the foundation for such writ, but it is only lawful, in the language of the statute, for the plaintiff to have said writ when no execution shall have issued on the judgment within a year and a day after its rendition. Dig. 207, § 29. Non liquet, but the court is called upon to do an useless thing — to order and adjudge that the plaintiff have execution of his judgment upon the ad. fa, when he has the full benefit of execution without it. That a party would not be likely to resort to such writ unnecessarily, is no answer to the general rule of law, that every party, who petitions the court to become active in his behalf, must show, prima fade at least, that he is entitled to the relief Avhieh lie seeks, or some relief consistent with his pleadings. As to requisites of scire facias, see 2 Ohio Rep. 248; 5 Halst. Rep. 337; 2 Kinney’s Comp. 559. The sdre facias and declaration being fatally defective in failing to set out or allege the existence of any ground which would authorise the writ to issue, the judgment must be reversed, See Gill v. Scrivens, 7 T. R. 30; Dozier v. Gore, 1 Litt. Rep. 164; as to forms of the writ, see Tidd’s Forms, 449, §§ 31-39; 2 Harris’ Ent. 460, § 132. Let the cause be remanded, that the plaintiff below have leave to amend, if the record shows he has had no execution of the judgment. Patrick v. Wood, 3 Bibb, 232; 2 Taylor, 146.