Battle v. Shivers

• Decision Date: 30 June 1869
• Citation: 39 Ga. 405
• Court: Georgia Supreme Court
• Parties: LUCIEN N. B. BATTLE, plaintiff in error. v. JAMES A. SHIVERS, defendant in error.

39 Ga. 405

LUCIEN N. B. BATTLE, plaintiff in error. v. JAMES A. SHIVERS, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, June Term, 1869.)

Rule against Sheriff. Dormant judgment. Decided by Judge William M. Reese. Warren Superior Court. April Term, 1868.

In answer to a rule against the sheriff, he stated that he had $2,032 50 raised by the sale of Curran Battle's property, subject to distribution according to law. Lucien N. B. Battle and A. W. Battle, who brought the rule, claimed the money under a fi. fa. in their names as executors, etc. Jas. A. Shivers was the assignee of a fi. fa. founded on a judgment older than theirs, it having been issued upon a decree rendered in Warren Superior Court, at its April Term, 1859, and dated the 7th of April, 1859, in favor of Lucien N. B. Battle, et al., for the use of Robert Toombs against said Curran Battle.

The parties were at issue as to who should have said fund, Lucien N. B. Battle and A. W. Battle objecting to Shivers taking it, because, as they averred, his fi. fa. was dormant. On the trial, the movants of the rule read in evidence their fi. fa., which issued on the 12th of April, 1861, on a judgment obtained on the second day of said month, which, on the 4th day of December, 1867, had been levied on the property of said defendant, the proceeds of which was the fund aforesaid, raised by sale under said levy. Shivers' attorney then offered in evidence his fi. fa., which had no entry of any officer on it since its said date. It was objected to upon the ground that it was dormant. The Court would not reject it, and the evidence being closed charged the jury that said fi. fa. was not dormant. There was a verdict in favor of Shivers, and he took the fund. *Thereupon a new trial was moved for, on the groundthat the Court erred in not rejecting said fi. fa., and in his charge to the jury. The Court refused a new trial, and that is assigned as error.

Toombs & DuBose, for plaintiffs in error.

E. H. Pottle, for defendant in error.

McCAY, J.

The sole question in this case is, whether the Acts passed at different times from November, 1860, up to November, 1865, suspending the "Statute of Limitations, " suspended also the Acts providing that under certain circumstances judgments shall become dormant. In other words, is the dormant Judgment Act, in the sense of the several suspending Acts, alluded to, a "Statute of Limitations?" It may be remarked, in passing, that these suspending Acts go into no detail, they all simply suspend the Statutes of Limitations, and in the investigation of the question before us, the defendant in error must clearly be in the right, unless, in some fair and just sense, the dormant Judgment Act can be covered by the words, statutes of limitations.

Much stress has been laid in the argument upon the fact that the codifiers have placed this provision of the law in the chapter devoted to Statutes of Limitations. Code, section 2863. But this argument has but little force, if it be remembered that they have also put the provision of three months after judgment for applying for a certiorari, and thirty days from the adjournment of the Court for suing out a writ of error, under this same head. Who would contend for a moment that these provisions were suspended by the suspending Acts? This Court has over and over again, during the existence of the suspending Acts, dismissed writs of error because not sued out in time, nor is it probable that it ever suggested itself to any one that the suspending Acts suspended also these provisions. At best, all that canbe said is, that it was the opinion of the codifiers that these provisions *might fairly be classed under the heading "Periods of Limitations." But the classifications of the Code are not law, nor are they at all accurate. It is probable that the dormant judgment provision was placed here for the reason that the codifiers did introduce a provision in reference to judgments which may fairly be called a statute of limitations, to-wit: that a judgment should not be revived or sued upon, more than three years after it became dormant, and it seemed proper to them, having thus made the period of limitation for suit, dependent upon the dormancy of a judgment, to prescribe in the same section, under what circumstances a judgment should become dormant.

It was said also in the argument that the Act of 1856, known as "Cone's Act, " which is entitled "An Act limiting the time in which suits in the Courts of law in this State must be brought, and also limiting the time in which indictments are to be found and prosecuted in certain cases, and for other purposes therein mentioned, " (Acts 1856, page 233,) contains also the dormant judgment act. In our judgment this is not the fact. The Act of 1856, says nothing about dormant judgments. It has a provision, it is true, prescribing that after seven years, without an entry, a judgment shall be presumed to be satisfied, but, as will appear hereafter, this is entirely a different thing from the provision for dormancy. In a very fair sense, a provision that a judgment shall be presumed satisfied may be called a "Statute of Limitations, " since a judgment thus situated cannot be revived nor sued upon.

It may be remarked, too, that this Act of 1856, by its very title, "for other purposes, " intimates that the Legislature well understood that the Act covered other things than Statutes of Limitation. The language of this Court in several cases has been referred to as sustaining the view that the dormant judgment Act may be fairly covered by the words "Statutes of Limitation." In these cases this Court speaks of this Act as "limiting" the operation of the judgment, of the "running of the Statute, "of the "period of limitation, " etc., etc. It would be a very severe criticism to require *a Judge never to use language, which though applicable to the case in hand, might, by perversion, be made to apply to a wholly different case. The dormant judgment Act does "limit" the operation of a judgment; it does fix a period beyond which, without an entry, it shall not be enforced, and it is not an improper use of language to speak of the Act as "limiting" the judgment, or of the period of limitation, etc., etc. The word limitation has a definite, philological meaning, and is applied to various other things besides actions at law. Any act which fixes a period within which a thing shall be done, on pain of losing a right, "limits" the period within which the thing shall be done. In this sense the law prescribing within what time an appeal shallbe entered, an execution stayed, a bill of exceptions filed, a deed or mortgage recorded, a lien entered up, a child\'s part chosen in lieu of dower, and many other Acts of like character, are laws "limiting" the period within which the things shall be done, and it would not be improper language, in speaking of any one of them, to say that the law "limited" the period within which, etc., etc. It can hardly be contended that by the words "statutes of limitation" in the Acts referred to, the Legislature meant all Acts limiting the time within which anything shall be done on pain of losing a right, since such a construction would include the Registry Acts and the other Acts to which we have referred, as they would all come clearly within such an intent. It is plain, therefore, that the words "Statutes of Limitation, " as used in these Acts, are to be construed reasonably and as they are used by lawyers, and not as covering all Acts limiting a period within which certain acts shall be done, on pain of losing a right. The phrase "statute of limitation" is a very familiar one. Very few persons can be found, at all conversant with business, who would not at once understand it. Whole books have been written upon it. Digests and indexes make it a separate subject, and there is hardly a law book in which it does not occur. And I venture to say, that, in the whole range of legal literature, these two words, taken together, can not be found, save with one meaning, to wit: that of "Acts limiting *the time within which proceedings shall be commenced in a court of "justice." The word "limitation, " used by itself, is variously applied, but the words "statutes of limitation" have always this definite meaning. At Common Law there was no limitation of actions; but in the reign of Henry VIII and James I, certain statutes upon this subject were passed, and in England and America these words "statutes of limitation" have for more than two hundred years been applied to that series of Acts which limit the period. within which actions shall be brought or proceedings commenced in a court of justice. These Acts are all based upon two ideas: First, that the defendant has, by lapse of time, lost the evidence of his right, that his witnesses may have died, his papers have been lost or destroyed. (For it has always been held that he may at any time waive the operation of the statute by acknowledging the plaintiff\'s right.) Secondly, that the plaintiff is to blame for not sooner bringing his action, since, if he be under any disability to sue, as an infant, insane, covert, imprisoned, or the like, the statute does not run against him. In other words, these Acts, all, are for the regulation of the rights of the plaintiff and defendant, and turn upon certain presumptions growing out of lapse of time, which may always be rebutted by the acknowledgment of the defendant on the one hand, or, on the other, by a disability of the plaintiff to sue.

"Statutes of limitations" are, then: first, Acts limiting thetime within which actions shall be brought; and secondly, they are based upon presumptions arising from lapse of time, which may be rebutted by showing an acknowledgment by the defendant, or proving the plaintiff under a disability to sue. Acts regulating proceeding at law, as the time limited for entering an appeal, or staying an execution, or serving a notice, and such...