Rogers v. Hollingsworth

95 Tenn. 357 | Tenn. | 1895

Wilk.es, J.

On January 25, 1895, a Justice of the Peace issued a noire facias to revive a judgment in favor of plaintiff against defendant rendered February 2, 1885, for $20.23, on which there was a credit of $9.55. The Justice of the Peace did not revive the judgment, but rendered a new judgment for $17.05, the amount of the former judgment and interest less the credit. Defendant appealed, and in the Circuit Court an entry was made reviving the original judgment, subject to the credit, and it thereupon further proceeds tó affirm the judgment of the Justice of the Peace and give a new judgment for $17.08, and defendant appealed to this Court.

It is assigned as error that scire facias will not lie to revive a judgment until after ten years from its date. This is error. On the contrary, after the lapse of ten years the judgment cannot be revived by scire facias over the plea of the statute of limitations, there being nothing else in the case.

It it said defendant was forced to trial at the first term after appeal taken, contrary to the rule and practice of the Court. We have no means of knowing what the rules and practice of that particular Court may be, but, under the general rule of practice, it was not error to require a trial at the term of the Court to which, the appeal was taken, though the papers were not filed till the second day of the 'term.

It is said the atrial Judge erroneously allowed a transcript of the original judgment to be introduced, the objection in this Court being that the Clerk should have certified to the official character of the Justice of the Peace, and that the record, as submitted, was not complete. If these specific objections had been taken on the trial in the Court below, they would have been fatal, but only a general objection was made, without specifying- the grounds. This is not sufficient. The grounds of objection must be special or they will be of no avail. Garner v. State, 5 Lea, 213.

It is next insisted the Court erred in giving a new judgment instead of simply reviving the old one subject to the credit, and awarding execution thereon. This assignment is well taken. The proper practice in cases of scire facias to revive former judgments is to order their revivor and award execution, to bear interest from the date when originally rendered, and not to give a new judgment for the amount of the original one and interest. It is not the case of a suit upon the original judgment, which might have been brought. Lain v. Lain, 3 Bax., 32; Fogg v. Gibbs, 8 Bax., 464. The judgment of the Circuit Judge should have been such as the Justice ought to have rendered, namely, that the original judgment stand revived and plaintiff have execution with interest and costs of the scire facias subject to* the proper credit, and execution should have issued without procedendo. Whitworth v. Thompson, 8 Lea, 487-8.

The appellee is entitled to such judgment here against appellant, but must pay the costs of this Court, because of the erroneous entry of the judgments below, and the judgment will be so modified.