37 Mich. 287 (Mich. 1877), Parsons v. Circuit Judge for Wayne County

• Citation: 37 Mich. 287
• Docket Number: .
• Date: 09 October 1877
• Parties: Philo Parsons, relator v. The Circuit Judge for Wayne County
• Court: Michigan Supreme Court

Page 287

37 Mich. 287 (Mich. 1877)

Philo Parsons, relator

v.

The Circuit Judge for Wayne County

Supreme Court of Michigan

October 9, 1877

Submitted June 19, 1877

Mandamus to vacate an order setting aside a pluries writ of execution. The facts are in the opinion.

Mandamus denied.

Moore, Canfield & Warner for the writ.

Ward & Palmer against.

OPINION

Page 288

Cooley, C. J.

It appears in this case that the relator obtained a judgment against Mark Flanigan and Edward Chope April 21, 1866, on a return of process personally served; that he took out execution August 1, 1873, an alias April 24, 1876, and a pluries May 27, 1876, and that the pluries writ was set aside by the circuit court on an affidavit of Chope showing that it was issued more than ten years from the entry of judgment, and affirming that he was never served with process. Mandamus is applied for to compel the circuit court to vacate the order setting aside this writ.

The ground principally relied upon in support of the order is that, as the remedy by suit on the judgment was barred when the writ was taken out, so by analogy the remedy by execution was gone also. Jerome v. Williams 13 Mich. 521. The conclusion here depends upon the proposition that the remedy by suit had been taken away before the pluries writ was sued out, which is not conceded by the relator.

The statute in force when the judgment was recovered did not name a time the lapse of which should be an absolute bar to suit upon a judgment, but it provided that the judgment should "be presumed to be paid and satisfied at the expiration of ten years" after it was entered. Comp. L. 1857, § 5384. Another section of the statute provided for the issue of execution without any limitation of time, and that "successive or alias executions may be issued one after another, upon the return of any execution unsatisfied in whole or in part, for the amount remaining unpaid upon any such judgment." Ibid. § 4442 (How. Stat. § 7664). While these provisions remained unchanged there is reason for saying that an execution might be taken out notwithstanding the lapse of ten years, and that the court would not be justified in

Page 289

setting it aside without some showing of actual payment. In other words, that while the presumption of payment might protect the defendant as against any suit upon the judgment until there was some showing that payment had not been made, yet that when the defendant invoked the assistance of the court in an affirmative proceeding instituted by himself, some showing of the fact of payment, which must be supposed within his knowledge, might properly be required of him.

The statute, however, was changed in 1869, and § 5384 [How. Stat. § 8736] was made to read as follows: "Every action upon a judgment or decree heretofore rendered or hereafter to be rendered, in a court of record of the United States or of this State, or of any other State of the United States, shall be brought within ten years after the entry of the judgment or decree, and not afterwards: Provided, that in all cases of judgments or decrees entered nine years or more before this act shall take effect, one year from the time when this act shall take effect shall be allowed for the commencement of an action or proceeding upon such judgment or decree, to...