Mitchell v. Chesnut

Robinson, J., delivered the opinion of the Court. These two appeals were heard together, and will be so disposed of by the Court. The first appeal is from an order of the Superior Court of Baltimore City, overruling a motion of the appellant to quash a writ of fieri facias, issued to Baltimore city, upon a judgment recovered against him by the appellees, in Prince George’s county. The following short copy of the judgment and docket entries thereon was sent with the writ of execution: — 524 — “ William Chesnut and Saml. P. Townshend vs. Henry S. Mitchell. Circuit Court for Prince George’s County. April Term, 1863. “1863, April 8tbi. Judgment for $2,500 damages and costs. To be released on tbe payment of $1,029.80, with interest thereon from the 15th of May, 1861, until paid and costs, and $2.03, costs of protest. Costs, $7.23. “ Stay 12 months. “Ei. Fa.,.A. C.,No. 296. “ Y. E. to N. C., 1866, No. 131.” To this is appended the official certificate of the clerk, with the seal of his office. It further appears from the record that the fieri facias to Raltimore city was issued on the 9th of June, 1868, more than three years after the expiration. of the stay- on the judgment, and it is insisted that the Court erred in overruling the motion to quash, because the execution previously issued to the Sheriff of Prince Ceorge’s county, not having been returned, or if returned, not continued on the records of the Court from term to term, it was necessary to revive the judgment by scire facias, before another execution could issue. Now it is well known that at common law a plaintiff who had recovered a judgment in a personal action, could neither sue out execution nor revive the same by scire facias, after the lapse of a year and a day from its rendition, but was obliged to bring an original action in which he could offer the judgment as evidence of-the debt. In regard to real actions, however, the rule was different, because the judgment being for land, an action of debt would not lie, and therefore in order to give the plaintiff the benefit of his judgment, it was held that a scire facias would lay for the land. — 525 — To remedy this, and make the procedure more uniform in both actions, the statute of "Westm. 2 (18 Ed., 1), stat. 1 chap. 45, gave the plaintiff the right to revive a judgment in a personal action by scire facias, if he had neglected to issue an execution within the year. After that time the law presumed the judgment satisfied or released, and the defendant was not to be disturbed, without an opportunity of pleading his release, or showing if there was any other reason, why an execution should not issue. But it is well settled that if a writ of fieri facias is issued within the year, and returned, and continued regularly upon the records of the Court, a new writ of execution may be taken out at any time, without reviving the judgment by scire facias. Tidd’s Practice, 1154; Mulliken vs. Duvall, 7 G. & J., 353. In such cases, the return of the execution, and the continuances from term to term, operate as a continuing demand of the debt by the plaintiff, and repel the presumption of satisfaction which would otherwise arise from lapse of time. But it has been expressly decided by this Court, that where there “ is a total suspension of final process upon the judgment, and no continuances are entered, if a year and a day elapse from the rendition of the judgment in England, or three years in this State, a scire facias becomes necessary to revive the judgment before further process can be obtained upon it;” and “ the term of limitation is to be computed from the date of the judgment, or when execution could issue, and not from the return of the writ. Mulliken vs. Duvall, 7 G. & J., 355.” This decision is fully sustained by the English authorities, and must be considered as decisive of the point now before us. Eor if it be conceded that the execution to Prince George’s county was returned, it does not appear to have been continued from term to term, and more than three years having elapsed from the expiration of the — 526 — stay, it was necessary to revive the judgment by scire facias before taking out another execution. The Court, therefore, erred in overruling the motion to quash, and the judgment in this appeal must be reversed. The second appeal is from an order of the same Court overruling a motion to quash a writ, of attachment, issued upon the same judgment, under the Act of 1862, chap. 262, which provides “ that executions by way of attachment may issue at any time within twelve years from the date of the judgment.” The short copy and docket entries sent with this writ, correspond with those sent with the fieri facias, with the exception of this additional entry : “ 1868, June 9th,fi.fa. after nulla bona to Baltimore city.” It is contended, in the first place, that the Court erred, because the clerk of Prince George’s county did not send a copy of the docket entries as required by the Act of 1865, chap. 5. Now the object of the. law in directing a copy of the docket entries to be sent, was to inform the Court having jurisdiction of the writ, whether a judgment had been rendered, and if so, whether execution properly issued. And although it is the duty of the clerk to make entries of all the proceedings in a case, yet if he fails to do so, it can be no reason why the plaintiff should not have execution upon his judgment. And if the execution thus issued is returned nulla bona, it is equally clear, that under the fifth sect, of Art. 18 of the Code, he would be entitled to another execution, to be issued to a county other than that in which the judgment was rendered. The fact that the copy of the docket entries sent with the writ does not contain all the entries which ought to appear of record, is no reason why the execution should be quashed, provided the copy shows that there was a valid subsisting judgment, and that upon it the execution properly issued. — 527 — This does appear from the short copy of the judgment and docket entries thereon transmitted with the writ of attachment, and is in our opinion a substantial compliance with the Act of 1865, chap. 5. In the case of Griffith vs. Lynch, Garnishee of Hall, 21 Md., 575, the execution was quashed, because it did not appear from the copy of the docket entries that any judgment had been rendered. But it is further insisted, that although under the Act of 1862, chap. 262, a plaintiff may have more than one execution upon the same judgment at the same time, to the county where it is of record, yet he cannot have more than one execution at the same time to another county. If this construction of the Act be admitted as correct, and is relied upon as an objection for setting aside the execution, it is clear that the appellant must show the writ outstanding to be valid and effective, and one under which the plaintiff could enforce the payment of his judgment. It is because he has already one valid execution that the law will not permit the debtor to be harassed and oppressed by other executions upon the same judgment at the same time. In this case, however, the record shows that the fieri facias to Baltimore city was improvidently issued, and was not such an execution as could be enforced. It is surely asking too much of a Court to quash the first writ because it was sued out more than three years after the rendition of the judgment, and in the next breath move to set aside the second execution, on the ground that it was issued whilst the first was outstanding. Since the argument, our attention has been called to the question, as to whether an appeal will lie from a judgment refusing to quash a writ of attachment, and upon the authority of Baldwin, use of Owens vs. Wright & Kent, 3 Gill, 241, we are of opinion that it will not. In that case it was held that such a judgment being merely in — 528 — terlocutory, no appeal would lie. The appeal, therefore, from the judgment refusing to quash the writ of attachment must be dismissed. (Decided 17th December, 1869.) Judgment in the first appeal reversed, and the second appeal dismissed.