Kirkland v. Krebs

Robinson, J., delivered the opinion of the Court. A scire facias was issued on the 24th February, 1868, to revive a judgment recovered by the plaintiffs on the 29th June, 1855, to which the defendant pleaded the Statute of Limitations, and the question is whether the statute was suspended as against this judgment during the stay of execution and sale, prescribed by the Acts of 1861, ch. 17, and 1862, ch. 249, known as the stay laws. That the Legislature did not intend to interfere with the statutory limitations in regard to judgments we think quite clear, for' although the above Acts of Assembly expressly declare that the stay thereby prescribed, shall not be computed as part of the three years within which execution may issue, we find no such provision or exemption in regard to the judgment itself. Moreover, it is well known that these laws were passed soon after the commencement of the late war, and the purpose, the sole purpose, was to protect the property of the debtor from seizure and sale, at a time when the condition of affairs was such that forced sales would have proved ruinous to the debtor. [97] But it was insisted that the operation of these laws deprived the plaintiff of the effectual prosecution of his remedy by scire facias, and that the suspension of the Statute followed as a necessary consequence upon this suspension of the remedy. Now, it is true, the term cause of action implies the right of action, and hence certain exceptions, have been engrafted upon the Statute, not perhaps within its letter, as for instance, whore there is no person capable of suing or being sued, or when a temporary incapacity to sue grows out of some particular provision of a statute. Trecothick vs. Austin, 4 Mason’s Cir. Ct. Rep., 16; Dowell vs. Weber, 2 Smedes & Mars., 452; Tarver vs. Cowart, 5 Ga., 66; Murray vs. The East India Co., 5 Barn, & Ald., 204. To permit the Statute to run in such cases, where no laches can be imputed to the parties, and where it is impossible, by suit or otherwise, to prevent its operation, would not only be extremely unjust, but, in the language of the authorities, contrary to the conclusions of reason that the framers of the Statute so intended. The exceptions, therefore, in such cases, are put upon the express ground that the parties are deprived of all remedy whereby the cause of action may be kept alive. Now, if the stay laws, in addition to the stay of execution and sale, had provided that no action by scire facias or otherwise, should be brought upon the judgment during the stay, it might be contended that the time during which such temporary disability continued, should be excluded from the computation. But we are at a loss to understand why a stay of execution is to be considered as denying to the plaintiff the right to bring an action upon the judgment either by debt or scire facias. To the latter the defendant has the right to plead, and although generally termed a judicial writ, it is classed and recognized by all the authorities as an action. 2 Tidd’s Practice, 1090; Evan’s Practice. The object of a scire facias, we admit, is to obtain a judgment capable of being enforced, but subject, nevertheless, to such restraints and dealings as the law itself may impose. It was never [98] supposed that the stay laws of 1861 and 1862 interfered with the right of action. Suits were brought as before, although the judgment, when rendered, ivas subject to the stay therein prescribed, and it would bo unreasonable to suppose the Legislature intended to put a specialty creditor upon an inferior footing to that enjoyed by a simple contract creditor. If, then, the plaintiffs had the right to keep their judgment alive by scire facias during the stay of execution, there is no reason why it should be exempted from the operation' of the statutory law of twelve years. (Decided 16th February, 1871.) The question as to whether the Statute begins to run from the date of the judgment or the expiration of the stay, can have no practical bearing upon this case, and it is, therefore, unnecessary to consider it. Here more than three years had elapsed from the date of the judgment, when the stay laws were passed, and more than twelve years from the time when execution could issue thereon, before the scire facias was sued out. . For these reasons, we are of opinion that the judgment ought to be affirmed. Judgment affirmed.