Thomas v. Lally, 152 P. 53

152 P. 53 | Cal. Ct. App. | 1915

This is an action upon a judgment obtained against the defendant in the state of Illinois. More than twenty years after the original judgment was given the assignee thereof sued out a writ of scire facias asking for a revival of the judgment against the defendant. The defendant appeared, filed a demurrer, which was overruled, and he elected to "stand by his demurrer"; a default was taken and entered against him, the record reading that the judgment against the defendant be revived and to stand in full force and effect as at the time of its rendition, and that the holder thereof have execution thereon against the defendant. Thereafter defendant made a motion in arrest of judgment, which was denied. Upon request he was granted permission to take an appeal, but it appears that he failed to prosecute it within the time or at all, and the judgment of the court last referred to has never been reversed, modified, or set aside.

In the action in the court below the plaintiff recovered judgment as prayed and the defendant appeals.

From a reading of the record it appears that the court in the state of Illinois in which the original judgment was entered had jurisdiction both of the subject-matter and the parties. The record also shows that the order or judgment of revival was rendered in a proceeding in accordance with the course authorized by the laws of the state of Illinois. These propositions are not disputed by the defendant. He does, however, appear to contend that the action of the court taken in the proceeding to revive the judgment amounts to nothing more than an order for judgment and not a judgment. A glance at so much of the record of the court in Illinois as we have hereinabove set forth would seem to be a sufficient answer to that contention. Moreover, it is clear that what the court did in the premises is all that was required by the laws of Illinois in order that a judgment of that state might be revived. The record on its face shows that the order or direction of the court was in fact a judgment — a final determination of the rights of the parties. (Code Civ. Proc., sec. 577; Leman v. Cunningham, 12 Idaho, 135, [85 P. 212].)

Defendant also contends that even if the order of the court be regarded as a judgment of revival, it is not a new judgment, but a continuation of the old judgment and barred in this state by the provisions of section 336 of the Code of Civil Procedure, which section provides that an action upon a judgment or decree of any court of the United States or of any state within the United States must be commenced within five years. The authorities, however, hold that a revived judgment by scire facias constitutes a new cause of action, upon which the statute of limitations begins to run from its rendition. InBrown v. Chaves, 181 U.S. 70, [45 L.Ed. 752,21 Sup. Ct. Rep. 515], Chief Justice Fuller said: "While it is true that scirefacias for the purpose of obtaining execution is ordinarily a judicial writ to continue the effect of the former judgment, yet it is in the nature of an action because the defendant may plead to it, and in many cases it has been classified as, in substance, a new action (citing many cases). In these cases it was ruled that scire facias on a judgment was not a mere continuation of a former suit, but created a new right."

In Mann v. Cooper, 2 App. D.C. 226, it was held that "A judgment upon a scire facias 'is in legal effect a new judgment, and the statute of limitations begins to run from its date anew.' " (See, also, Packer v. Thompson, 25 Neb. 688, [41 N.W. 650]; Fagan v. Bently, 32 Ga. 534; Morton v. Valentine, 15 La. Ann. 150.)

In the last mentioned case the court said: "The conclusion of the court upon the final hearing upon the scire facias is something more than an execution. It is a judgment. If so, then we are informed by the constitution of the United States and the act of Congress under it, what effect must be given to this judgment in Louisiana. It must have the same effect here that it has in the state of Mississippi."

This position is not in conflict with anything said in the case of Doehla v. Phillips, 151 Cal. 488, [91 P. 330]. It is clear from the authorities cited that a scire facias is unlike the proceeding authorized in California by section 685 of the Code of Civil Procedure, which provides that a judgment may be enforced after the lapse of the statutory time for commencing an action thereon; but that proceeding, as the court says in the case last cited, is "neither an action nor a special proceeding of a civil nature within the meaning of those terms as used in such statutes, nor in the nature of either."

Defendant does not claim in his briefs that the record of the Illinois court shows upon its face that the statute of limitations had run against plaintiff's right to revive the judgment by scire facias; nor could he very well do so, since if that be true, it is a matter which should have been corrected by an appeal to the appellate court in the state of Illinois.

The trial court did not abuse its discretion in denying defendant permission to file an amended answer.

Judgment affirmed.

Lennon, P. J., and Richards, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on October 22, 1915.