32 Tex. 741 | Tex. | 1870
In October, 1865, Lesser obtained a judgment against Phillips upon a note, and on the 30tli of June, 1868, caused an execution to issue thereon.
This execution was enjoined at the instance of the debtor, because, being the first on the judgment, and not being issued in twelve months after the rendition of the judgment, it was ■dormant, as alleged.
The act of the 5th of February, 1841, Art. 4608, provides that “judgment in any court of record within this Republic, where execution hath not issued within twelve months after the rendition of the judgment, may be revived by scire facias,” etc.
At the time this act was passed the execution law of the State required executions to bp issued by the clerk in every case, from and after the rising of every court. (Art. 3772.) But if a debtor should voluntarily pay a judgment, and the clerk should have legal evidence of that fact in his office, he would be acting illegally to issue an execution simply because the judgment had been executed voluntarily.
There can be no doubt that the reason of the passage of the act virtually declaring a judgment dormant upon which execution had not issued in twelve months, was because it was to be presumed that it had been paid, and this presumption was based upon the law requiring executions to be issued semiannually until they are paid. And therefore the act is to be •construed as if it had declared a judgment dormant, if executions were not issued in twelve months, from and after the time the same are issuable. The act is, in fact, an act of limitation.
At the time the judgment in this case before the court was rendered, the execution laws were suspended, and no execution could, under any circumstances, issue till the 1st of January, (1868.) (Act of 1866, p. 126.)
The execution was issued in June, (1868,) within twelve months from and after the time permitted.
Applying the well known law maxim, licessante legis mtione,
The judgment dissolving the injunction is affirmed.
Affirmed.
