Williams v. Cable

Daggett, J. The judge who tried this cause at the circuit, instructed the jury, that upon the facts admitted and proved, the plaintiffs were entitled to a verdict. The correctness of the charge is now to be examined. The counsel for the plaintiffs attempt to vindicate the charge on several grounds, which were discussed at large, and each of which might be deemed deserving of consideration : [124] but as the court is satisfied on one point, which justifies the charge, an opinion will be given on that point only. The execution which issued on the 18th August, 1824, in favour of Sarah Howe against Betty Walker, the levy of which on the demanded premises, alone stands in the way of the plaintiffs’ title, was irregular and void. It issued from a spe cial county court, as it is called, holden on the 17th and 18th of August 1824, and on a process called a motion, made by Sarah Howe, and dated on the 17th August, and of which Betty Walker had no other notice than by an attested copy left at her usual place of abode, on the aforesaid 17th day of August. An execution was issued on a judgment of the county court of the county of Fairfield, at its term of April 1824, in favour of Sarah Howe against Betty Walker, which had been returned into court endorsed satisfied, by a levy on land, which was defective, and by which no title was acquired. The object of the motion was, to obtain a new execution on the judgment; and the motion was granted. The question now arises, is this proceeding regular and the execution valid ; or is it irregular and void ? 1. It is not shown to the court, that any law or practice of our courts warrants such a proceeding; nor is it believed, that in a single instance, it has been sanctioned. Debt on judgment and scire-facias (in such cases) are familiar to the profession ; but the same object has not been attained by motion. This alone might well excite strong doubts of the correctness of the proceeding. 2. This motion seems designed to answer every purpose of the action of debt or scire-facias ; and so the special court considered it, and issued an execution accordingly. If then it was of the nature of a scire-facias, or action of debt, it follows, that a plea might have been interposed, and the judgment debtor might have shown all those reasons why a judgment should not be rendered and an execution issued, which are permitted by way of defence in those suits. For a scire-facias or debt on judgment the defendant may plead nul till record, payment, release, or that the debt and damages were levied on execution, or any matter which could not have been pleaded in the original action. Co. Litt. 290. Grey v. Jones, 2 Wils. 251. 2 Tidd’s Prac. 1043. Many other authorities to the same effect might be cited. 3. If then, this motion, as it is called, is substantially an action of debt or scire-facias, could the court legally render a [125] judgment, and issue an execution, with only 12 or at most 24 hours notice, against the defendant in the suit ? It is against first principles, as well as the positive provisions of law, that a judgment can be effectual without the notice prescribed by law, unless indeed, notice be waived. The doctrine of waiver, however, need not be considered ; for here was no appearance on the part of Betty Walker, nor is there any pretence of waiver. The only authority cited from our books is found in 1 Swift’s Dig. 795. The commentator there places a motion like the present and a scire-facias on the same ground. He was not considering the subject particularly ; — his remarks are quite general ; no authority is cited ; and the opinion, therefore, cannot be deemed obligatory. In the absence of any enactments of our legislature, and there being no practice of courts in Connecticut to sustain this proceeding, it must be considered irregular and void. The charge then was correct; and the rule for a new trial must be discharged. IIosstEit, Ch. J., and Lamían, J., were of the same opinion. Peters and Brainard, Js., were absent when the case was argued. New trial not to be granted.