Mariner v. Coon

By the Court, Dixon, C. J. The question presented by this caséis, whether an execution issued upon a dormant judgment, withont leave of court, is void or only voidable. If void, no sale can be made un ler it, and the purchaser acquires no title, But if voidable, the sale may be valid, notwithstanding the omission to obtain leave. We are of opinion that such an execution is merely voidable, and therefore that no advantage can be taken of the irregularity, except in a direct proceeding to set it aside. The rule at common law is well known. If the plaintiff failed to take out execution within a year and a day, extended in many of the states, by statute, to two years from the time the judgment became final, it could not be regularly issued thereafter, without revising the judgment by scire facias. The rule was founded upon a presumption that the judgment had been satisfied, which drove the plaintiff to a new proceeding to show that it had not; and yet it was invariably held, that an execution taken out after that time, and without scire facias or judgment of revivor, was not null, but simply irregular. The defendant might, if he desired, interpose and set it aside upon motion; but if re neglected to do so, it was considered an implied admission that the judgment was still in full force. He might waive the irregularity, and thus avoid the expense of a scire facias. See Irwin’s Lessee vs. Dundas, 4 How., 79; and Doe vs. Harter, 2 Carter, (Ind.) 252, and the cases cited. But the code (sections 192 and 193 of the original act, now sections one and two, of chap. 134, R. S.), prescribes a different practice, and it is upon this that the counsel for the defendants chiefly relies. When the execution in controversy [469] was issued, the period was fixed at two years from the entry of judgment. It is now enlarged to five. Laws 1861, chap. 140; After that period has elapsed, it is provided that “an execution can be issued only by the leave of the court, upon motion,” &c. This language is said to take away all power, except it be acquired in the manner prescribed, and to render every process issued in contravention, of it, void for want of jurisdiction. "Were we to suppose the legislature to be speaking with reference to the question of power, then there is nothing in their language inconsistent with the position of counsel and we might adopt his views. But we are not at liberty to act upon this supposition. Upon looking to the previous state of the law, and to other provisions of the act, we see very clearly, that it was a matter of practice with which the legislature were dealing, a question as to the form of proceeding which should thenceforth be pursued, and not one which necessarily affected the jurisdiction incase the new practice was not complied with. By section 3.81 of the original act (section 1, chap. 160, R. S.), the writ of scire facias is virtually abolished. The remedies heretofore obtainable in that form, may be obtained by civil action under the provisions of the code. But by the particular provision of section two, chap. 134, above referred to, the remedy by motion to revive a judgment, which has become dormant by lapse of time, is substituted. Hence the peculiar significance of the word “ only,” upon which the counsel insists so strongly to show a want of jurisdiction. The execution shall be issued only upon motion; otherwise the plaintiff might resort to the remedy by civil action. It appears, therefore, that the consequences of a departure from the practice prescribed by statute, are the same as they were at common law. It is a simple irregularity, which the execution debtor may waive, and which it seems he did do in this case. Judgment reversed, and a new trial awarded.