Johnson v. Lemmon

Alvey, J., delivered the opinion of the Court. The attachment in this case by way of execution was issued on the 5th of April, 1871, on a judgment rendered on the 10th of September, 1860. There does not appear to have been any stay of execution of the judgment, nor has'the judgment ever been revived by scire facias. The attachment was laid in the hands of the appellant as garnishee of the defendant in the judgment; and, failing to appear at the return term, judgment of condemnation was entered against him in the usual way.

Upon the judgment of condemnation a fieri facias issued on the 19th of.October, 1871. After the term had elapsed to which the attachment was returnable, and after the issuing of the fieri facias, but during the next succeeding term of the Court, the appellant appeared by petition, and prayed that the judgment and. execution thereon, he set aside and annulled, for reasons stated in the petition. This application was refused, and hence this appeal. That the garnishee can take advantage of any defect in the attachment, is well settled; (Harden vs. Moore, 7 H. & J., 4 ;) and there being a radical'defect in the ³⁴³ attachment in this case, we think the judgment entered thereon against the garnishee should have-been set aside, and the attachment itself quashed.

The attachment was issued after the lapse of more than ten years from the rendition of the judgment. This judgment at the date of the attachment, was not subject to execution in the ordinary course of proceeding, until regularly revived by scire facias; for, after the lapse of three years from the date of the judgment, or from the expiration of the stay of execution, the presumption is that the judgment has been paid or that execution has been released, and therefore it is, that the plaintiff in the judgment is put to his scire facias to revive it, to which the defendant may appear, and plead in the same manner as to an action founded upon an original writ. Mullikin vs. Duvall, 7 Gill & J., 355, 359; 2 Tidd’s Dr., 1103; 2 Inst., 470. But, by the Act of 1862, ch. 262, it is provided, that execution by way of attachment may issue at any time within twelve years from the date of.the judgment, “and if more than three years have elapsed after the date of the judgment, or expiration or removal of the stay thereon, the said attachment shall h'e subject to the same defences by the defendant as in cases of scire facias. ’ ’ The attachment under this Act, performs the double office of execution and scire facias; that is, to some extent.

It is not, it is true, a scire facias for the purpose of reviving the judgment, and procuring an award of execution. But, having reference to the presumption of payment or release, it calls upon the defendant to shew cause why condemnation should not be had of the property, rights or credits seized under the attachment. To this attachment, the defendant in the judgment has a right to appear