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