Vick v. Chewning's Heirs

31 Miss. 201 | Miss. | 1856

Lead Opinion

Fisher, J.,

delivered the opinion of the majority of the court.

The appellant on the 30th of January, 1842, recovered a judgment in Warren Circuit Court against James J. Chewning. Executions at various times were issued upon this judgment, the last execution appearing to have issued on the 22d of February, 1851. Chewning the debtor, having died some time prior to the 22d of October, 1852, the exact time of his death not being stated or shown, a writ of scire facias to revive the judgment against his administrator, was issued by the clerk of said court on the day above named. The administrator appearing, interposed as a defence to the writ of scire facias, the Statute of Limitations, and the court upon the above state of facts, held the statute to be a good defence, and thereupon refused to revive the judgment against the administrator. The statute is in these words, “judgments in any court of record in this State, shall not be revived by scire facias ; nor shall any action of debt be instituted thereon after the expiration of seven years next after the date of such judgment; nor shall any person sue out an execution on any judgment or decree after seven years from the time the last execution issued on such judgment or decree.” Hutch. Code, 830, 831, § 8. If this statute be taken according to the plain import of its words, what must we understand to have been the intention of the legislature ? Certainly that a judgment cannot be revived by scire facias or made the foundation of an action of debt, if seven years had elapsed before such proceeding was commenced. The statute is positive in its terms, that the thing shall not be done after the period of seven years from the date of the judgment, or in this case, we may say from the passage of the law. The court, cannot, in the construction of the statute, engraft upon it any other exceptions, than such as the legislature declared in the enactment of the law.

It may be true, that the plaintiff has a right to his execution against the debtor, so long as he pursue this remedy without the aid of a scire facias. But it must not be supposed that, because the party is not restricted as to the time in which he may have one remedy, that he is not therefore restricted as to other remedies.

The question is, can the plaintiff proceed with the execution of his judgment without the aid of a scire facias ¶ The statute declares, that this remedy, whether it be considered merely as process, or an original proceeding, shall not be employed after the lapse of seven years, from the date of the judgment.

Smith, C. J., concurred.

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Dissenting Opinion

Handy, J.,

delivered the following dissenting opinion.

I. cannot concur in the opinion of the majority of the court in this case.

The provision of the statute in question is, that “judgments in any court of record in this State, shall not be revived by scire facias, nor shall any action of debt be instituted thereon after the expiration of seven years, next after the date of such judgment; nor shall any person sue out an execution on any judgment or decree after seven years, from the time the last execution issued on such judgment or decree,” &c.

The question is, whether, in a case where more than seven years 'have elapsed since the date of the original judgment, and in which ,-an .execution has been issued before the expiration of seven years after the rendition of the judgment, and in the lifetime of the original defendant, a scire facias, issued within seven years from the date of the execution, but after the lapse of seven years from the date of the original judgment, may be maintained to revive the judgment, and have execution against the representatives of the original defendant, who has died since the issuance of the last ,execution.

It is true, that the literal terms of the first clause of the statute would forbid the scire facias in all cases, after the lapse of seven years from the date of the judgment. But this provision must be construed with reference to the subsequent clause, which distinctly recognizes the right to have execution of the judgment at any time within seven years, from the time the last execution issued. Now it is well settled that a scire facias, such as this is, is not in its nature an original action, but mere process for obtaining execution, rendered necessary by the death of the defendant. Such is the object and prayer of the writ, and such is the award of the court, fiat exeeutio, &c. When, therefore, the statute gave the right to have execution within seven years from the date of the last execution, it is to be presumed that it was intended to allow all the means necessary to the enjoyment of the right. Thus, if the last execution issued were in such a condition as to render it necessary to obtain an order of court awarding execution, as in case of an entry of satisfaction appearing upon it, when in fact there was no satisfaction; or in case of there appearing to be what would be a presumed satisfaction in law, it would be competent for the court after the lapse of seven years from the date of the judgment, but within seven years from the date of the last execution, ■ to entertain a motion, and award execution.

A statute, in giving a remedy in general terms, gives all the established means necessary to the enjoyment of the right; and in giving the right to have execution, if that right cannot be exercised without the scire facias, the statute entitled the party to a scire facias, by necessary implication.

I think that the true spirit of the section of the statute in question is, that new vitality to all intents and purposes, except as to the preservation of the lien, should be given to the judgment by the issuance of an execution within seven years from the date of the judgment, or within seven years from the date of a previous execution; and that the right conferred to have execution within the period prescribed, carried with it the right to have the scire facias, if the circumstances of the case rendered it necessary; because the scire facias is but process to obtain execution, without which the right granted to have execution would be nugatory.

A re-argument was applied for by plaintiff in error, but it was refused.