It appears in this case that the relator obtained a judgment against Mark Flanigan and Edward Chope April 21, 1866, on a return of process personally served; that he took out execution August 1, 1873, an alias April 24, 1876, and a pluries May 27, 1876, and that the pluries writ was set aside by the circuit court on an affidavit of Chope showing that it was issued more than ten years from the entry of judgment, and affirming that he was never served with process. Mandamus is applied for to compel the circuit court to vacate the order setting aside this writ.
The ground principally relied upon in support of the order is that, as the remedy by suit on the judgment was barred when the writ was taken out, so by analogy the remedy by execution was gone also. Jerome v. Williams,
The statute in force when the judgment was recovered did not name a time the lapse of which should be an absolute bar to suit upon a judgment, but it provided that the judgment should “be presumed to be paid and satisfied at the expiration of ten years,” after it was entered. Comp. L. 1857, § 5384. Another section of the statute provided for the issue of execution without any limitation of time, and that “successive or alias executions may be issued one after another, upon the return of any execution unsatisfied in whole or in part, for the amount remaining unpaid upon any such judgment.” Ibid., § 4442. While these provisions remained unchanged, there is reason for saying that an execution might be taken out notwithstanding the lapse of ten years, and that the court would not be justified in
The statute, however, was changed in 1869, and § '5384 was made to read as follows: “Every action upon a judgment or decree heretofore ■ rendered or hereafter to be rendered, in a court of record of the United States or of this State, or of any other State of the United States, shall be brought within ten years after the entry of the judgment or decree, and not afterwards: Provided, that in all cases of judgments or decrees entered nine years or more before this act shall take effect, one year from the time when this act shall take effect shall be allowed for the commencement of an action or proceeding upon such judgment or decree, to revive the same: Provided further, that no judgment or decree shall be revived, an action to recover or enforce which is now legally barred.”
This amendment took effect July 5, 1869. By its terms it applied expressly to judgments previously rendered, and if applied to this particular judgment, would have allowed some six years and nine months within which to bring suit. No question can be made but that this would be a reasonable time, or might be considered so, and as a time was expressly fixed the expiration of which without suit was to bar the right of action, the amended section does not fall within the decision in Ludwig v. Stewart,
It; is further urged that, as a rule of construction, a statute amended is to be understood in the same sense exactly as if it had read from'the beginning as it does as amended. This is true as a rule. Conrad v. Nall,
These views, in our opinion, bring the case within the principle of Jerome v. Williams, supra, where the court refused to order an execution after an action on the judgment had been barred. The mandamus must therefore be denied.
It is suggested that the terms of the statutes awarding executions are such that one may of right take out an execution at any time; but the provisions on that subject were previous to the act of 1869, and so far as they are inconsistent with these views, must be considered modified by implication.