Collin County Nat. Bank of McKinney, Tex. v. Hughes

• Decision Date: 10 July 1907
• Docket Number: 2,511.
• Citation: 155 F. 389
• Parties: COLLIN COUNTY NAT. BANK OF McKINNEY, TEX., v. HUGHES.
• Court: U.S. Court of Appeals — Eighth Circuit

155 F. 389

COLLIN COUNTY NAT. BANK OF McKINNEY, TEX., v. HUGHES.

No. 2,511.

United States Court of Appeals, Eighth Circuit.

July 10, 1907

Clayton C. Dorsey and William V. Hodges, for the motion.

Before SANBORN, HOOK, and ADAMS, Circuit Judges.

SANBORN Circuit Judge.

Counsel for Hughes have made a motion for a rehearing of this case upon four grounds: (1) That what is said in the opinion with reference to the practice upon a writ of scire facias to revive a judgment is obiter dictum, (2) that the use of the writ of scire facias to revive a judgment is abolished in Colorado, except in the manner prescribed by the statutes of that state; (3) that the method of service of the writ is prescribed exclusively by the statute of Colorado, and that it may not be otherwise served by the direction of the federal court to revive a judgment of that court in that state; and (4) that the service of the writ personally outside of the district of Colorado will not be due process of law under the decision in Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565.

1. What was said in the opinion upon the questions challenged was appropriate and logical in its relation to the decision of the actual issue presented, to wit, whether or not the order assailed in this case was a final order. While the specific legal issues other than the latter question were not expressly presented for adjudication, they naturally arose and were properly considered in view of the condition of the case and the necessity of proper action by the court below.

2. The jurisdiction of a national court over a controversy once lawfully acquired includes the power to enforce its judgment or decree, and this power may not be destroyed or restrained by the legislation or lack of legislation of the states because it is granted by the Constitution and the acts of Congress, which are the supreme law of the land. Barber Asphalt Pav. Co. v. Morris, 66 C.C.A. 55, 59, 132 F 945, 949. The writ of scire facias to revive a judgment is founded upon the statute of 2 Westminster, c. 45, enacted in the thirteenth year of Edward I, or the year 1285. A scire facias to revive a judgment is a continuance of the original action, and is not a new action. The practice under the common law in case the writ of scire facias could not be served upon the defendant was to render judgment of fiat execution upon two returns of nihil. But Chief Justice Beasley in delivering the opinion of the Supreme Court of New Jersey in Elsasser v. Haines, 52 N.J.Law, 10, 18 A 1095, 1098, said, and it is a rational statement, that there is no substantial difference between the judgment fiat execution and the judgment quod recuperet. So that it does not seem to be material to notice the form which the judgment in the case at bar may take under the scire facias issued. In the eighteenth volume of the Encyclopedia of Pleading and Practice, at page 1055, the statement is made that scire facias to revive a judgment is the usual method unless another is provided.

In 1789 the Congress granted to the Supreme Court and the Circuit and District Courts of the United States the power to issue writs of scire facias. Rev. St. Sec. 716 (U.S. Comp. St. 1901, p. 580). In 1822 in Delano v. Jopling, 1 Litt. (Ky.) 118, 120, the Court of Appeals of Kentucky held that a judgment rendered in the state of Virginia on a scire facias against special bail upon two returns of nihil was entitled to full faith and credit in the state of Kentucky, and sustained an action for judgment upon it. That court said:

'A scire facias is styled a judicial writ, viz., a writ for the purpose of effectuating what has already been decided, or, in case of bail, to compel the bail to perform that which he hath solemnly undertaken of record; and the reason why the bail is summoned at all is out of abundant caution and tender regard to his rights, for the purpose of allowing him to show some matter which may have arisen since his undertaking, and which may exonerate him. Hence he is summoned to answer matters of record, and the judgment rendered of record after his undertaking, against his principal, is conclusive against him. There is therefore no necessity of taking the same care to bring him into court, in order to subject him to his undertaking, as there is with regard to defendants in original actions, where the matters in controversy are entirely en pais, and have never been settled or ascertained by judicial determination.'

In 1858, in Battey, Ex'r, v. Holbrook, 77 Mass. 212, the Supreme Judicial Court of that commonwealth decided that after judgment had been rendered against a defendant, and he had removed from the local jurisdiction of the court, the writ of scire facias might still issue, 'for,' said the court, 'the suit is in fact still pending in court, its remedy yet incomplete, and to be enforced as and when new breaches occur'

In 1840 one Comstock recovered a judgment in the Circuit Court of the United States for the District of Rhode Island in an action of debt in which the defendant had been duly served with process. In 1859 a writ of scire facias was sued out upon that judgment in Rhode Island, and was served personally upon the defendant in the state of Massachusetts, to which state he had moved and in which he was then residing. In 1860 an action was brought upon this second judgment in one of the trial courts of Massachusetts, and the plaintiff recovered.

Upon a writ of error the Supreme Judicial Court of Massachusetts affirmed the judgment. It said:

'The scire facias was not a new action, but a continuation of the old one. Wright v. Nutt, 1 T.R. 389. It was indeed necessary that notice thereof should be given to the defendant before judgment thereon could legally be rendered. But, as the law prescribed no form of notice to a defendant out of the district where the court was held, it was for the court to cause such notice to be given as should be reasonable and enable him to appear and defend his rights. The notice given to the defendant was actual, personal, and seasonable, and though it was not in any form which had been ordered by the court, and was not proved by a return of an officer of the court, as such officer, but by his affidavit, yet it was adopted by the court as sufficient; and the judgment thereafter rendered must be deemed valid, and this action thereon be sustained. The Circuit Court could not be ousted of its jurisdiction by the absence of the defendant from the district in which the action was pending. ' Comstock v. Holbrook, 82 Mass. 111, 113.

In this state of the law and the practice the territory of Colorado in the year 1861 enacted a statute to the effect that the common law of England and all acts and statutes of the British Parliament prior to the fourth year of James I, of a general nature and not local to that kingdom, should be the rule of decision and be considered in full force until repealed by legislative authority. 2 Mills' Ann.St. § 4184. There can be no doubt that, under the common law, the foregoing statutes and decisions, and the established practice, the Circuit Court of the United States had power to issue its writ of scire facias and to prescribe a reasonable method of service thereof without the district of the court where a defendant in a judgment had departed from its district. In 1877 the Legislature of Colorado provided that a judgment in a civil action might be revived by filing a petition, issuing an order to show cause and serving it on the defendant in the same manner as summonses were required to be served in civil actions. Mills' Ann. Code, Secs. 241-244. The statutes of Colorado also provided that a summons in a civil action might be served by publication where the defendants were not residents. Mills' Ann. Code, Sec. 41. At the time of the issue of this scire facias there was a rule of the court below in force in the district of Colorado, to the effect that:

'Writs of execution and other final process issued on judgments and decrees rendered in this court and the proceedings thereon had shall be the same, except their style, as are now or may be hereafter used in the highest court of original and general jurisdiction in this state.'

But this rule is not controlling in the issue and service of writs of scire facias because they are not writs of execution or other final process, nor are they proceedings thereon had, and, even if the rule were applicable, it would still be within the power of the court below to vary its process and its manner of service by order so as to attain the ends of justice.

It will be perceived from the statutes and decisions which have been cited that the power to issue the writ of scire facias and to serve it in such manner as the court below deemed wise and reasonable was vested in that court prior to the Colorado act of 1877 and that no additional power was granted by that act.

In Elsasser v. Haines, 52 N.J.Law, 10, 18 A. 1095, Chief Justice Beasley, in an exhaustive and learned opinion which he delivered in the year 1889 for the Supreme Court of New Jersey, expressed the opinion of that court that a judgment upon two returns of nihil upon a scire facias issued in the state of Pennsylvania upon a bail bond was according to the course of the common law and of the law of that state, and was conclusive in the state of New Jersey and the action upon it was sustained.

Counsel insist that this proceeding by scire facias cannot be sustained, and they cite in support of their view Humiston v. Smith, 21 Cal. 129, 135, Cameron v Young, 6 How.Prac. (N.Y.) 372, Hughes v. Shreve, 60 Ky. 547, and De Baca v. Wilcox, 68 P. 922, 923, 11 N.M. 346, decisions which hold that the writ of scire facias to revive a judgment is abolished in these various...