While a
scire facias, for the purpose of obtaining
execution, is ordinarily a judicial writ to continue the effect of
a former judgment, yet it is in the nature of an action, and is
treated as such in the statutes of New Mexico. After a judgment is
barred under those statutes, the writ of
scire facias,
giving a new right and avoiding the statute, cannot be
maintained.
This case was brought here both by writ of error and appeal. As
there was no trial by jury, and the issues were only questions of
law determined by the trial court on demurrer, the writ of error is
dismissed, and the cause considered on the appeal.
On the 7th of October, 1885, the firm of Browne, Manzanares
& Company, composed of L. P. Browne, since deceased, and F. A.
Manzanares, recovered judgment against Francisco Chavez, 2d in the
District Court of Bernalillo County, for the sum of $4,170, damages
and costs. No action was taken in respect of this judgment, and no
execution was issued upon it so far as this record discloses.
September 30, 1895, a writ of
scire facias was sued out
and service had. The defendant filed two pleas, the first
suggesting the death of one of the plaintiffs since the rendition
of the judgment, which plea was abandoned, the second the plea of
the statute of limitations, to which a demurrer was interposed by
plaintiffs, which was overruled by the court. Plaintiffs thereupon
refused to plead further, and stood by their demurrer, whereupon
the court rendered judgment dismissing the writ.
The statutes referred to are as follows:
An Act of January 23, 1880, compiled in 1884 as sections 1860
and 1861, as follows:
"SEC. 1860. The following suits or actions may be brought within
the time hereinafter limited, respectively, after their
Page 181 U. S. 69
causes accrue, and not afterwards, except when otherwise
specially provided."
"SEC. 1861. Actions upon any judgment of any court of record of
any state or Territory of the United States, or the federal courts
of the United States, within fifteen years."
An act of February 10, 1887, compiled in 1897 as sections
3085-3086, as follows:
"SEC. 3085. That hereafter it shall not be necessary to bring
proceedings in any court to revive a judgment having been already
obtained before a court of competent jurisdiction in this
territory, except in cases where such judgment had been rendered
for a period of five years or more next preceding the issue of
final process for the enforcement of the same."
"SEC. 3086. An execution may issue at any time, on behalf of
anyone interested in such judgment referred to in the above
section, within five years after the rendition thereof, and without
the necessity of bringing an action to revive the same."
An act of February 24, 1891, as follows:
"SECTION 1. That so much of the laws of the Territory of New
Mexico as is compiled as section 1861 of the Compiled Laws of the
Territory of New Mexico of 1884 be, and the same is hereby,
repealed, and the following be and is hereby substituted
therefor:"
" SEC. 2. (1861). Actions founded upon any judgment of any court
of the Territory of New Mexico may be brought within seven years
from and after the rendition of such judgment, and not afterward,
and actions founded upon any judgment of any court of record of any
other territory or state of the United States, or of the federal
courts, may be brought within seven years from and after the
rendition of such judgment, and not afterward:
Provided,
That actions may be brought upon any existing judgment which, but
for this proviso, would be barred, within one year from and after
the passage of this act, and not afterward, and all actions upon
such judgments not commenced within the time limited by this act
shall be forever barred."
This section was brought forward as section 2914 of the Compiled
Laws of 1897.
Page 181 U. S. 70
MR. CHIEF JUSTICE FULLER delivered the opinion of the Court.
The writ of
scire facias has been, among other things,
customarily used to obtain execution on a judgment which has become
dormant. At common law, it lay in real actions and on a writ of
annuity, if the plaintiff did not take out execution within a year
and a day, and it was given, under the same circumstances, in
personal actions, by the statute of Second Westminster, 13 Edw. I,
St. 1, c. 45, before which act the plaintiff was put to a new
action on his judgment. Foster on Scire Facias 2, and cases
cited.
The writ in this case was taken out to obtain execution of the
judgment in question. That judgment was recovered October 7, 1885,
and no execution had been issued thereon. The writ was dated
September 30, 1895. The statute provided that "actions founded upon
any judgment of any court of the Territory of New Mexico," and
"upon any judgment of any court of record of any other territory
or state of the United States, or of the federal courts, may be
brought within seven years from and after the rendition of such
judgment, and not afterward:
Provided, That actions may be
brought upon any existing judgment which, but for this proviso,
would be barred within one year from and after the passage of this
act, and not afterward, and all actions upon such judgments not
commenced within the time limited by this act shall be forever
barred."
It thus appears that this judgment was barred, according to the
terms of the act, some years before the writ was issued, but it is
contended that, although that was so, the bar did not apply to the
writ of
scire facias, by the use of which the judgment
could be revived and an execution issued upon it notwithstanding
the lapse of time.
It is argued that
scire facias is not included in the
words "all actions," barred by the statute, because a proceeding by
scire facias is not an action, and because to hold it to
be would
Page 181 U. S. 71
be inconsistent with another statutory provision that actions
should be commenced by "the filing in the proper clerk's office of
the petition, declaration, bill, or affidavit." Compiled Laws 1884,
section 1867. But we think that the averments in the writ are
equivalent to a petition or declaration, and, while it is true that
a
scire facias for the purpose of obtaining execution is
ordinarily a judicial writ to continue the effect of the former
judgment, yet it is in the nature of an action, because the
defendant may plead to it, and in many cases it has been classified
as in substance a new action. Foster 13; Coke Litt. 291
a;
Fenner v. Evans, 1 T.R. 267;
Winter v. Kretchman,
2 T.R. 46;
Holmes v. Newlands, 5 Q.B. 370;
Owens v.
Henry, 161 U. S. 645;
Kirkland v. Krebs, 34 Md. 93;
Potter v. Titcomb,
13 Me. 36;
Gonnigal v. Smith, 6 Johns. 106;
Cameron v.
Young, 6 How.Pr. 374;
Murphy v. Cochran, 1 Hill
339.
In
Fenner v. Evans, a
scire facias had been
issued to revive a judgment entered prior to the Act of 17 Geo.
III, c. 26, and execution had been taken out upon it. The
scire
facias and the execution were both set aside, the court
holding that
scire facias was an action within the second
section of that act, providing "that no action shall be brought on
any such judgment already entered," etc.
By section 40 of chapter twenty-seven, 3 & 4 Will. IV, it
was provided that
"no action or suit, or other proceeding shall be brought to
recover any sum of money secured by any mortgage, judgment, or
lien, or otherwise charged upon or payable out of any land or rent
at law or in equity, or any legacy, but within twenty years next
after a present right to receive the same shall have accrued to
some person capable of giving a discharge for or release of the
same."
And it was held that no
scire facias could be sued out
to revive such a judgment after the lapse of twenty years. Foster
14, 29;
Farnan v. Beresford, 10 Cl. & F. 319;
Farrell v. Gleeson, 11 Cl. & F. 702. In these cases,
it was ruled that
scire facias on a judgment was not a
mere continuation of a former suit, but created a new right.
In many jurisdictions, provision is made for the revival of
judgments by
scire facias within a specified time, but our
attention
Page 181 U. S. 72
is called to no such provision in these statutes. The reference
to revivor in such cases treats
scire facias, if used, as
an action. It was enacted by the act of 1887, now sections 3085 and
3086 of the Compiled Laws of 1897, that it should not be
necessary
"to bring proceedings in any court to revive a judgment having
been already obtained before a court of competent jurisdiction in
this territory, except in cases where such judgment had been
rendered for a period of five years or more,"
and that an execution might issue at any time
"on behalf of anyone interested in such judgment referred to in
the above section, within five years after the rendition thereof,
and without the necessity of bringing an action to revive the
same."
Assuming that
scire facias lies under the Code of New
Mexico to revive a judgment, it is included in the word "action" in
this section, and we think it may properly be assumed to have been
used in the same comprehensive sense in the act of 1891,
prescribing the limitation on "all actions founded upon any
judgment."
We agree with the Supreme Court of New Mexico that the
construction contended for is unreasonable, and would defeat the
manifest object of the legislature, and that, after a judgment is
barred under the statutes of New Mexico, a
scire facias
giving a new right and avoiding the statute cannot be
maintained.
Writ of error in No. 165 dismissed; judgment in No. 247
affirmed.
