Kirkland v. Krebs

• Decision Date: 16 February 1871
• Citation: 34 Md. 93
• Parties: WILLIAM R. KIRKLAND and WILLIAM VON SACKS v. GEORGE W. KREBS.
• Court: Maryland Court of Appeals

34 Md. 93

WILLIAM R. KIRKLAND and WILLIAM VON SACKS v. GEORGE W. KREBS.

Court of Appeals of Maryland

February 16, 1871

APPEAL from the Superior Court of Baltimore City.

On the 24th of February, 1868, a scire facias was issued to revive a judgment which the appellants had recovered on the 29th of June, 1855, against the appellee. The defendant pleaded the Statute of Limitations. The plaintiffs replied that by virtue of the Acts of 1861, ch. 17, and 1862, ch 249, known as the stay laws, they were precluded from having an execution on their judgment, from the 10th of May, 1861 to the 1st of November, 1862; and that from the date of the judgment to the issuing of the writ of scire facias, a period of twelve years had not elapsed during which it was lawful and proper for them to have had execution on said judgment.

To this replication the defendant demurred. The Court sustained the demurrer, and gave judgment in favor of the defendant upon the plea of limitations. The plaintiffs thereupon appealed.

The cause was argued before BARTOL, C.J., STEWART, MILLER, ALVEY and ROBINSON, J.

Stewart Brown and F. W. Brune, for the appellants.

The stay laws, (or more particularly the stay law of 1861, which is the only one necessarily considered in this case,) during their continuance, prevented the effectual prosecution of the writ of scire facias; and as a consequence of such suspension of remedy, the running of limitations was also suspended.

And this is so, not only upon the general principal that such is the result of a legislative prohibition of suit or suspension of the remedy, but as the proper construction of the Act of limitations itself, which provides that in order to bar the action, the "thing in action" must have been "standing" for twelve years. That is to say, in the case of a judgment, that the proper legal result of judgment viz: execution, should have been, upon proper application procurable during such period. Evans' Practice, 164, (2 d Ed.,) 203; Salisbury vs. Black, 6 H. & J., 296; Hall vs. Cresswell, 12 G. & J., 36; Keefer vs. Zimmerman's Ex'rs, 22 Md., 274.

In the case of a judgment, the limitation runs not from the date, but from the time when the plaintiff is entitled to judicial process, i. e., execution to enforce it. Thus, if stay of execution be entered on the docket, from the expiration of the stay. Mullikin vs. Duvall, 7 G. & J., 355; Mitchell vs. Chesnut, &c., 31 Md., 521.

The operation of the stay law of 1861, on judgments generally, and on this judgment in particular (on which at the time, scire facias was necessary before execution) was, that the statute certainly took away that which the authorities look to as an essential to cause the running of the Statute of Limitations, that is to say, "judicial process to enforce it," obtainable immediately by simple order, or after scire facias upon a judicial award. And further, the stay law not only thus rendered the proceeding practically ineffectual, even if fiat executio could have been entered, in the face of the statute, but the statute itself could have been pleaded as an effectual bar to the writ, which writ expressly calls on the defendant to show caused why execution should not issue, and the judgment on which is not that of an ordinary recovery " quod recuperet," but an award of execution " fiat executio. " Campbell vs. Booth, 8 Md., 107, and 15 Md., 569; 8 Bacon's Abridgt., title Scire facias, 598; Foster's Scire facias, 73 Law Library, 11 to 16.

Arthur W. Machen and I. Nevett Steele, for the appellee.

The stay law of this State, in suspending for a limited term the right of execution and sale, did not close the Courts, nor interfere with any rights of action of creditors. The whole object of the Legislature was to protect the property of the debtor from actual seizure and sale, at a time when the condition of affairs was such that forced sales would probably have involved ruinous sacrifices. Suits and actions, and indeed all judicial proceedings went on as before.

In the condition in which the judgment in question was at the time of the enactment of the stay law in 1861, that Act had no practical operation upon it at all. More than three years having elapsed since the date of the judgment, without any measures to keep it alive, it was not then fitted for execution. Before they could obtain execution, it was necessary for the plaintiffs to revive it by debt or scire facias. Had they thereupon so revived it, which there was nothing then to prevent, the stay law would have operated upon the new judgment, and suspended execution of it for the prescribed term. They did nothing, however. The judgment remained as it was, until the statutory period of twelve years expired, and the bar created by the Code, Art. 57, sec. 3, became complete. Mullikin vs. Duvall, 7 G. & J., 355; Mitchell vs. Chesnut, 31 Md., 54.

The stay law did not in terms interfere with the limitation in question, or create a new exception to the running of the general statute. And there was nothing in the nature of such a stay law to operate an exception by necessary implication.

Every creditor "has a common law right to judgment, and only the express words of a statute will suffice to exclude him from that right." Sir Fitzroy Kelly, C B. Wright vs....