Richardson v. Williams

5 Port. 515 | Ala. | 1837

COLLIER, C. J.

The plaintiff in error obtained an order for a supersedeas, on the twelfth May, eighteen hundred and thirty-five, upon his petition, setting forth, that, at the September term, eighteen hundred and thirty-one, of the Circuit Court of Greene, a judgment was obtained against him, at the suit of one Joseph G. Williams: that Williams had died previous to the commencement of the action ; that he had appealed from that judgment to the Supreme Court, where, at its term holden in January, eighteen hundred and thirty-five, it was affirmed. The petition prays the issuance of a su-persedeas, and such other relief as may be necessary.

At the September term, eighteen hundred and thirty-six, of the Circuit Court, counsel professing to represent Williams, appeared and moved the Court to quash the supersedeas, — this was objected to, by the plaintiff’s counsel, who offered to' prove the death of Williams, and required that the adverse counsel should satify the Court, that they represented a- “ living person but these objections were overruled. Thereupon, the counsel for the plaintiff moved the Court, for leave to make the sheriff, (to whom administration of Williams’s' estate had been granted two days previously,) a party, as administrator; but the Court sustained the motion-to quash the supersedeas on the ground, that the judgment rendered in the Circuit Court, had been affirmed by the Supreme Court, and could not be annulled by the former; and for the further reason, that the plaintiff had omitted to' plead the death of Williams in abatement of the action.

For the plaintiff, it has been argued, that his remedy by writ of error, coram 'nobis, at common law; was clearly defined, and that he was correctly pursuing it, when his petition was dismissed. The defendant, denying the justness of this argument, insists, that whatever remedy the plaintiff’ may have had, it is lost by the operation of the statute of limitations, limiting all writs of error to three'years from the rendition of the judgment.

The statute is in these words ; “A writ of error may issue to reverse any final judgment in the Circuit Court, at any time within three years after the rendition of the judgment, and not afterward.” — ^ The terms of this act are general, and must be taken to apply as well to writs from an inferior to a superior Court, to reverse a,judgment; as where the writ issues from a Court returnable to itsfclf, to reyoke its own judgment. And as the time prescribed elapsed before the plaintiff commenced his proceeding, the bar is complete, unless the influence of the statute, can be superseded.

It is insisted, that Williams having died previous to'the judgment recovered against the plaintiff, and no administration appearing to have been had upon his estate, there was no one to proceed against, so that the statute could not run. Without sloping to inquire, whether the plaintiff might have taken the initiatory step, to procure a revocation of the judgment against him, before an administrator was appointed, we are of opinion, that it was his duty to have procured the appointment of the sheriff so that office, which would have been done by the County Court, by shewing, prima facie, that Williams had been dead as much as three months, and his estate unadministered on. Upon the supposition that an administrator was necessary to authorise the plaintiff to commence his proceeding, to set aside the judgment against him, — in calculating time, he must be allowed in addition to three years, (the statute bar,) three months, the period within which, he could not procure the grant of administration to the sheriff.

Giving the plaintiff three years and three months after the judgment was obtained against him, to exhibit his petition, and still the limitation would have expired.—See to the same effect, Hutchison vs Tolls, 2 Porter’s Rep. 44; and Houpi vs Shields' adm’r 2 ib. 247.

Judgment is affirmed.