Grantland v. City of Memphis

• Decision Date: 20 May 1882
• Citation: 12 F. 287
• Court: U.S. District Court — Western District of Tennessee
• Parties: GRANTLAND v. CITY OF MEMPHIS.

12 F. 287

GRANTLAND v. CITY OF MEMPHIS.

United States Circuit Court, W.D. Tennessee.

May 20, 1882

The plaintiff recovered in this court on June 14, 1879, a judgment against the city of Memphis for $1,778.75. A scire facias issued against the taxing district of Shelby county to show cause why this judgment should not be revived against it as the successor of the city of Memphis, to which the taxing district has demurred, because--

'(1) From the fact of said writ it appears that the plaintiff in the above-entitled cause has already recovered a judgment against the city of Memphis, and therefore there can be no revivor against this demurrant. (2) It is insufficient because there was none of the goods and chattels or assets of said city of Memphis in this defendant's hands at the death of said city of Memphis, and are not now any of the same to be administered, but these assets and all others of said city were and are devoted by law to the payment of the debts of said city, including this judgment, wherefore there can be no revivor by writ of scire facias against this defendant.'

By acts of the legislature the charter of the city of Memphis was abolished, and a corporation organized with municipal powers except those of taxation, which were reserved to the legislature, by which body all taxes for municipal purposes are levied. This new corporation is composed of the same inhabitants and territory as the old city of Memphis, but its official style is 'The Taxing District of Shelby county,' and it is by this scire facias sought to revive this judgment against it.

William M. Randolph, for plaintiff.

C. W Heiskell, for defendant.

HAMMOND D.J.

The Revised Statutes, Sec. 716, authorize the federal courts to issue the writ of scire facias according to the usages of the common law and the law of the states. Bump, Fed. Proc. 401, and notes; Bank v. Halstead, 10 Wheat. 51, 55. The uses of the writ at common law and under the early English statutes are very numerous, though there was some dispute whether strictly, at common law, it applied to any personal action. Foster, Scire Facias, passim; 8 Bac. Abr. (Bouvier's Ed.) tit. 'Scire Facias;' 2 Tidd, Pr. (3d Ed.) 1090; 63 Law Lib. 1 et seq.; Freeman, Ex'n. Secs. 81-97; Freeman, Judg. (2d Ed.) Secs. 442-450. But the uses of the writ have been very much extended by later statutes in the parent country and in the United States. 12 U.S.Dig. (F.S.) 56; 8 Jac.Fish.Dig. 12025; Tenn. Code tit. 'Scire Facias,' Secs. 2257, 2272, 2855-6, 2987, 3576, 4425. An example of its extended use will be found in Winder v. Caldwell, 14 How. 434, where it was employed to enforce a mechanic's lien.

And it will be observed, in reading the law on the subject of the writ, that these statutes and the practice under them have, as a principal object, the simplification of its use and the employment of its functions to meet almost any contingency that may arise requiring notice to parties outside of the record on which it is based that their interests are, or are about to be, or may properly be, affected by the proceeding. It is a very convenient writ, and the tendency to make it serve these purposes has resulted in cutting loose from much of its technical environments in the ancient law. It now accommodates itself to almost any case in which its use is either necessary or desirable.

Still, the statute above referred to, authorizing this and other remedial writs, does not extend to the point of enlarging our jurisdiction by means of the writ to be issued, nor is its use unrestricted by well-defined principles that control the court in determining the rights of the parties. U.S. v. Plumer, 3 Cliff. 28.

I have not been able to find and no case has been cited precisely like this, which is not strange, since the circumstances are peculiar, the abolition of one municipal corporation and the substitution of another in its place being a rare occurrence. But among the very earliest cases are found strong analogies in this case. In Atkins v. Gardener, Cro. Jac. 159, a college of physicians in London recovered under a statute a judgment as a penalty against a doctor for practicing physic without a license, the suit brought in the name of the president of the corporation. He died after judgment, and on scire facias to revive the judgment in the name of his successor it was contended that the scire facias should have been in the name of his executor or administrator; but the court overruled the objection because the suit was given to the college, and the president having recovered in right of the corporation the law transferred the duty to his successor. 8 Bac.Abr. 600. And, on the other hand, if one have judgment against the vicar, and before execution the vicarage is united to the parsonage, he brings his scire facias against the parson. Dean and Chapter of Litchfield's Case, 20 Edw.IV.fol. 6, pl. 7; Grant, Corp. 638, 639.

And so the later decisions under statutes giving corporation the right to sue in the name of a public officer for the time being, or in the name of some officer of the company for the time being, whenever by death or otherwise there was a change of officers, and new parties succeeded, the scire facias was necessary to bring them to conform the judgment and execution to each other and make the record consistent with itself, because without this consistence the rule was relentless that there could be no execution. Foster, Scire Facias, book 2, cc. 1, 2, p. 99; Id. book 1, c. 7, p. 90, and cases cited. The contention was that in such cases the mere suggestion would be sufficient; but it was finally determined that there must be a scire facias. The court said, in Bosanquet v. Ransford, 11 A. & E. 520; S.C. 2 Q.B. 972: 'The uniform course, if new parties are introduced, is by scire facias; on suggestion, is applicable to collateral facts affecting the same parties; as, for example, change of name and similar matters. ' Cross v. Law, 6 M. & W. 217; S.C. 8 Dowl. 789; Harwood v. Law, 7 M. & W. 206; S.C. 8 Dowl. 904; Bartlett v. Pentland, 1 B. & A. 704. In Webb v. Taylor, 1 D. & L. 676, Patterson, J., said: 'The banking company are in truth the real parties to the suit, and ought to be allowed to make the substitution they propose. ' Foster, Scire Facias, 104.

And so, here, the real party is the municipality of the city we know as Memphis, and its change of name or rehabilitation into a new corporation would seem to be the very case for a scire facias to bring it in; if for no other purpose, to make the record consistent with itself. The statute of Westm. 2, 13 Edw.I.c. 45, gave the scire facias for the very purpose of allowing new parties to be introduced into the record; and although in a general way it is usually applied in cases of change of parties by death, marriage, and bankruptcy, it is by no means confined to these changes, but extends to any change whatever. The statement of the rule is: 'Whenever it is sought to fix a party on a judgment given against another, it must be done by scire facias; the rule being that where a new person, who was not a party to a judgment or recognizance, derives a benefit by or becomes chargeable to the execution, there must be a scire facias to make him a party to the judgment or recognizance. ' Foster, Scire Facias, 6; 2 Inst. 471; Cross v. Law. supra; Penoyear v. Brace, 1 Ld.Raym. 245; Offut v. Henderson, Cro. Car. 553, Brown v. Railroad Co. 4 F. 770; Dibble v. Norton, 44 Miss. 164; Shepherd v. Ryan, 53 Ga. 563.

It is said in Nat. Bank v. Colby, 21 Wall. 609, that a corporation dissolved...