Barley v. Duncan

• Decision Date: 24 February 1941
• Docket Number: Record No. 2375.
• Citation: 177 Va. 202
• Court: Virginia Supreme Court
• Parties: LOUIS C. BARLEY, ET AL. v. JAMES M. DUNCAN, JR., ADM'R, ETC.

Page 202

177 Va. 202

LOUIS C. BARLEY, ET AL. v. JAMES M. DUNCAN, JR., ADM'R, ETC.

Record No. 2375.

Supreme Court of Virginia, Richmond.

February 24, 1941.

Present, Holt, Hudgins, Browning, Eggleston and Spratley, JJ.

LIMITATION OF ACTIONS — Suspension or Interruption of Statute — Section 5809 of the Code of 1936 — Inapplicable to Proceeding to Revive Judgment by Writ of Scire Facias — Case at Bar. — In the instant case the executors of a judgment creditor, after the trial court had decided in a previous case between the same parties that section 5809 of the Code of 1936, excluding from the computation of time within which civil proceedings must be commenced one year from the death of any party, did not apply to a suit in equity instituted by a judgment creditor to enforce the debt against the real estate of the judgment debtor, caused writs of scire facias to be issued on the same judgments. Defendants plead the statute of limitations and res adjudicata, and to the orders of the trial court sustaining the plea of the statute and dismissing the proceedings, a writ of error was allowed. Plaintiffs in error contended that a proceeding to revive a judgment by scire facias was in no sense a real action and hence the former case was not determinative of the issues raised in the instant case, but the former case also held that an exception to the limitation of time to institute proceedings to enforce a judgment must be found in the statute itself and cognate sections.

Held: That while the contention of plaintiffs in error was sound, the extension of one year from the death of a party, prescribed in section 5809 of the Code of 1936, is not one of the exceptions expressed in sections 6477 and 6478, relating to the limitation of proceedings to enforce a judgment, and for that reason the orders of the trial court should be affirmed.

Error to orders of the Corporation Court of the city of Alexandria. Hon. Wm. P. Woolls, judge presiding.

The opinion states the case.

Hardee Chambliss, Jr., and Wilson M. Farr, for the plaintiffs in error.

Robinson Moncure, Thomas, Strauss & Backus, J. Randolph F. Davis, Howard W. Smith, Jr., and Albert V. Bryan, for the defendants in error.

HUDGINS, J., delivered the opinion of the court.

After the trial court had decided the previous case between the same parties (aute, page 192, 13 S.E.(2d) 294), the executors of Harley P. Wilson caused writs of scire facias to be issued on the same judgments against James M. Duncan,...