Eddy v. Coldwell

• Decision Date: 14 November 1892
• Citation: 31 P. 475,23 Or. 163
• Parties: EDDY v. COLDWELL.
• Court: Oregon Supreme Court

31 P. 475

23 Or. 163

EDDY v. COLDWELL.

Supreme Court of Oregon

November 14, 1892

Appeal from circuit court, Multnomah county; E.D. SHATTUCK, Judge.

Action by Teresa Eddy against E.L. Coldwell. Judgment for defendant. Plaintiff appeals. Affirmed.

J.H. Mitchell, W.W. Thayer, and J.F. & E.B. Watson, for appellant.

W.R Willis and Guy G. Willis, for respondent.

LORD, C.J.

This is an action at law to recover the possession of certain real property, described in the complaint. The pleadings are in the usual form, and present the issue sought to be tried in such actions. The parties waived a trial by a jury, and consented to try the issue before the court. After trial the court found and filed its conclusions of fact and law, which are set out in the record. For the purposes of this case, it is enough to state that on the 26th day of November, 1872, E.F. Russell became the owner of the tract of land in dispute through mesne conveyances duly executed, and purporting to convey it; that on the 5th day of October, 1874, judgment was duly rendered and docketed in the county court for the county of Multnomah in favor of Lathrop Coldwell and against E.F. Russell, that on the 28th day of April, 1879, an execution was issued on said judgment and returned unsatisfied on the 24th day of June, 1879; that no other execution was issued on said judgment until the 31st day of July, 1884, a period of over five years and three months after the issuing of said execution on the 28th day of April, 1879; that on the 31st of July, 1884, without any leave of court, an alias execution was issued on said judgment, and that on the 20th day of September, 1884, the tract of land in controversy was sold by the sheriff under said alias execution to James E. Coldwell for $967.71, bid by him, and by him paid to the sheriff, and that on the 6th day of October the sale was duly confirmed by order of the county court, and in pursuance thereof, on the 12th day of December 1884, the sheriff executed a deed to James E. Coldwell; that on the 3d day of February, 1885, James E. Coldwell executed a deed of the same property, being the property in dispute, to E.L. Coldwell, the defendant herein; that on the 30th day of January, 1890, E.F. Russell, and Carrie, his wife, executed a deed of the property in dispute to Jackson Jordan, and that on the 5th day of August, 1891, Jackson Jordan executed a deed of the same property to Teresa Eddy, the plaintiff herein. Upon this state of facts the court found as conclusions of law that the plaintiff was not entitled to the possession of the property described in the complaint; that the defendant is the owner in fee simple of said property, and entitled to the possession of the same, etc.,--and thereupon rendered a judgment in favor of the defendant, from which judgment the plaintiff has brought this appeal.

From these facts it appears that an execution was issued upon the judgment before a period of five years had elapsed after its entry, but that a period of over five years and three months intervened between the dates of issuing the first and second executions, without any proceeding to obtain leave to issue the latter, under which the sale of the property in dispute was made. As counsel for the plaintiff assert, the main question presented is whether this second execution, obtained without leave, is valid, and the sheriff's sale and deed under it effectual to pass the title to the land in controversy. Their contention is that an execution issued without reviving the judgment, as provided by section 295, Hill's Code, where more than five years have elapsed since the issuance of the last execution, is void, and consequently insufficient to support the sale of land made thereunder. This contention is based on the assumption that the proceeding by motion to obtain leave to issue execution under section 95, supra, is, in substance and effect, essentially a different remedy than was afforded by the writ of scire facias at common law; that it is a separate proceeding, distinctly judicial, requiring notice to the judgment debtor, pleadings, trial, and judgment; and that, the proceeding being such, the requirements of the section to obtain leave to issue an execution and to give notice to the judgment debtor, are mandatory, and not merely directory, rendering an execution issued without such leave and notice a nullity, and the sale thereunder void. At common law, no execution could be issued upon a judgment after the expiration of a year and a day, unless an execution had been taken out and returned in that time. When this had not been done within that period of time, the judgment became inoperative, or, as it is usually called, "dormant," and so continued until it was revived by a writ of scire facias. This was a writ founded upon the judgment, the object of which was to obtain authority to have an execution issued thereon; and ordering the defendant to show cause, if any there be, why such execution should not issue. The writ presents the plaintiff's whole case, and constitutes the declaration, to which the defendant must plead. It serves the double purpose of a writ and declaration; and, as its object is to revive a dormant judgment, and not create one anew, it is not an original process, but a judicial writ. But, while scire facias is not an original process by which an action is commenced, it is considered to be so far original that the defendant may plead to it. Winder v. Caldwell, 14 How. 434. Lord Coke said that a scire facias is to be "accounted in law in the nature of an action," because the defendant could plead to it; and so the books have often said since; but the facts it recites assert no cause of action beyond or back of the judgment upon which it is based. Co.Lit. 2906; Fenner v. Evans, 1 Term R. 268; Bilbo v. Allen, 4 Heisk. 31. A scire facias cannot, therefore, be regarded as a new or an original action when the plaintiff is not required to file any new declaration, or rule the defendant to plead, and when no new judgment is rendered on it, but it is merely a continuation of the old one. Referring to the fact that scire facias is sometimes spoken of as a new action, Mr. Freeman has well observed that "the object sought and the result accomplished by a scire facias to revive a judgment both show that it is not a new action, but merely a continuation of the old one; no cause of action beyond the old judgment can be asserted; no ground of defense anterior to the old judgment can be brought forward; no relief beyond that embraced in the old judgment can be obtained; and, finally, the judgment entered upon the scire facias is simply 'that the plaintiff have execution for the judgment in the said scire facias and costs,' and whatever destroys the effect of the original judgment also destroys the effect of its revival by scire facias." 2 Freem. Ex'ns, (2d Ed.) § 81. Hence the only defenses to a scire facias were either nul tiel record, or payment, accord, and satisfaction, or some other matter which showed that the judgment had been discharged. It may also be noted that by the form of the writ the intent is to give notice to the defendant to show cause, if any there be why execution shall not issue; yet in practice the cases show that the issuance of execution or revival of the judgment without such notice is not fatal to its validity. Where the judgment is revived by scire facias without any actual notice, the defendant may afterwards present his defense by audita querela, or upon motion to be relieved, if the revivor of the judgment was improper. Id. § 89. But this goes to show that the judgment revived by scire facias in such case, although without actual notice, is not void, but voidable. The consequences are the same as the issuance of an execution after a year and a day without a scire facias,--the writ is voidable, but not void. The defendant may take proceedings to have it set aside, but, if he neglected to do so, others cannot do it for him, nor can he attack it collaterally, and a levy and sale under it are sufficient to transfer title. Id. § 29.

Turning now to section 295, we are to inquire whether its provisions were intended as a substitute for the writ of scire facias to revive a dormant judgment, only aiming to accomplish the result sought by it, or to provide an essentially different remedy, which, in substance and effect, is a new action, and the result to be obtained by it a new judgment, and which is to be pursued exclusively, rendering any execution issued five years after its entry, without any proceeding to obtain leave upon notice duly given to the party to be affected by it, fatal to its validity, and all proceedings under it void and ineffectual to pass title. Section 295 provides: "Whenever, after the entry of a judgment, a period of five years shall elapse without an execution being issued on such judgment, thereafter an execution shall not issue, except as in this section provided." Then follow six subdivisions of said section prescribing and regulating the mode of procedure to obtain leave of the court to issue execution. Subdivision 1 provides that the party in whose favor judgment is given shall file a motion with the clerk where the judgment is entered for leave to issue an execution, and that the motion shall state the names of the parties to the judgment, the date of its entry, and the amount claimed to be due thereon; and that the motion shall be subscribed and verified as a complaint. Subdivision 2 provides that at any time after filing such motion the party may cause a summons to be served on the judgment debtor in like manner and with like effect as in an action at law, and that in case such judgment debtor be dead the summons may be served upon his representatives by...