Brooks v. Preston

Rogers, J., delivered the opinion of the Court. The facts in this case are as follows. On March 30th, 1892, a certain Henry J. Conway recovered judgment in the Baltimore City Court against Chauncey Brooks the appellant in this Court, for $208.13, with interest and costs. Conway died in 1894.

On November 4th, 1905, letters of administration were granted to the appellee by the OrpTians’ Court of Baltimore City on the estate of Conway. On November 6th, 1905, the appellee by petition filed in the case in which judgment was recovered, suggested the death of Conway, and his appointment as administrator, and was substituted as plaintiff in the place of Conway. On November 8th, 1905,'the appellee caused the writ of scire facias to revive said judgment to be issued out of said Court, which was made known to the appellant. To said writ the appellant pleaded, first, limitations, and second, payment.

The appellee demurred to the plea of limitations and replied to the plea of payment, denying that the appellant had discharged the judgment by payment. Issue was joined on the demurrer and on the replication to the second plea. The Court overruled the appellee’s demurrer, with leave to reply, and he replied, (1), that the operation of the Statute of Limitations was suspended between the time of Conway’s death and the granting of administration on his estate, and that consequently said judgment was not above twelve years, stand ⁷⁰³ ing at the time of the suing out of said writ; (2) a new promise within three years before the suing out of said writ, and (3) that no judgment has been yet recovered in this action. The appellant demurred to this replication, but the Court overruled his demurrer, with leave to rejoin, and he rejoined to the appellee’s replication that, (1) the operation of the statute was not suspended between the time of Conway’s death and the granting of administration on his estate, (2) the appellant did not make the new promise alleged, and (3) the judgment referred to in his replication is the judgment upon which said writ issued.

The appellee surrejoined to the appellant’s first rejoinder, that the statute was suspended during said period, and joined issue on his second and third rejoinders. The appellant joined issue on the appellee’s surrejoinder to the appellant’s first rejoinder. The case was tried and resulted in a verdict and judgment for the appellee, from which this appeal was taken. Four exceptions were taken during the trial by the appellant, three to the rulings of the Court on the evidence and the fourth to its rulings on the prayers and these are the questions presented by sáid exceptions, together with the Court’s action on the demurrers, that are to be determined by this Court.

The first question to be determined is, when, from an examination of the record, the first error in pleading has occurred. We have seen that the plea of limitations was interposed by the appellant. To this the appellee demurred. What is the language of this plea?

It is in these words: “For first plea, that the judgment in this action was recovered more than twelve years before the issuing of the sci. fa. thereon in this action.” is this a good plea? The Code, Art. 75, sec. 24, sub-section 50, gives this form: “That the alleged cause of action did not accrue within-years before this suit.” We think this a substantial compliance with the law. If the judgment was recovered more than twelve years before the issuing of the sci. fa. necessarily the right of action in legal contemplation had accrued more than twelve years before the issuing of the sci. fa. and the statutory defense had been availed of which was ⁷⁰⁴ open to the appellant. But the appellee contends that the use of the words “in this action” are irregular and .meaningless, because this was a new action, and when the plea was filed no judgment had been obtained.

Now a scire facias is a writ grounded on some record remaining in the Court from which it is issued, and although it is a judicial writ of execution, yet it so far partakes of the nature of an original writ, that the defendant is entitled to plead to it. Poe's Pl. & Pr., 3 ed., sec. 585. Judge Irving in Bish v. Williar, 59 Md. 384 , uses this language: “A scire facias to revive a judgment is, as to the judgment debtor and his heirs or personal representatives, a continuation of a former proceeding.” A sci. fa. is usually deemed a judicial and not an original writ. 19 Ency. Pl. & Pr., 262.

With one or two exceptions * * * proceedings, by sci. fa. are according to the weight of authority considered to be a continuation of former proceedings, and not an original action. 19 Ency. Pl. & Pr., 263. Although * * a writ of scire facias is a judicial process, yet it so far partakes of the nature of an original action that the defendant may appear and plead thereto, and is to that extent considered an action. 19 Ency. Pl. & Pr., 264.

Judge Bartol in Bridges v. Adams, 32 Md. 580 , uses this language; “But a scire facias is not an original writ within the meaning of