Kyles v. Ford

• Decision Date: 07 November 1823
• Citation: 23 Va. 1
• Parties: Kyles v. Ford.[*]
• Court: Virginia Supreme Court

23 Va. 1

Kyles v. Ford.^[*]

Supreme Court of Virginia

November 7, 1823

This was an appeal from the Superior Court of Law for Cumberland County, where H. & R. Kyle sued out a writ of scire facias against H. Ford, as special bail for T. Haskins, against whom a judgment had been obtained, and a capias ad satisfaciendum returned " not found."

The scire facias was dated on the 26th day of April, 1820.The appearance-day was the first Monday of May following " before the Judge of our Superior Court of Law of Cumberland at the court-house, that being the rule-day, to be holden in the Clerk's office of said county, & c."

The writ was executed on the 29th day of April, 1820.

On the first day of May, the defendant not appearing, a conditional judgment was entered up against him, at the rules, unless he should appear at the next rule-day.

On the 4th day of May, Ford, the defendant, came into Court, and surrendered Haskins, his principal; whereupon, the Court discharged Ford from his recognizance of bail, and gave judgment against him for the costs of the scire facias.

To this judgment the plaintiff filed a bill of exceptions, setting forth the foregoing facts, and stating, that it was proved that the scire facias was returned executed on Monday, the 1st of May, 1820, which was the first day of the term of the Superior Court of Law.

The plaintiffs appealed.

Judgment affirmed.

W. Hay Jr. and Call for the appellants.

No Counsel, for the appellee.

Judge Green.Judegs Coalter and Broode concurred; and the judgment was accordingly affirmed.^[*]

OPINION

GREEN, JUDGE

The act of 1819, 1 Rev. Code, p. 502, relating to the proceedings in civil cases, provides, that special bail shall be discharged by the surrender of the principal, in Court, or to the Sheriff, at any time before the appearance-day of the first scire facias returned " executed," or of the second returned " nihil."The laws in force before this statute took effect, prescribed, that the appearance-day should, in all cases, be the day after the Court to which the process was returnable, and that was also the rule-day.The statute of 1819 does not, in terms, appoint any appearance-day; but, it may be inferred from various provisions of the statute, and indeed results from the terms of the writ, in the absence of any express provision on the subject, that the appearance-day is the return-day of the writ, if, according to law, an appearance can then be entered; or if not, then the first day thereafter on which an appearance can be entered.Thus, when the writ is returnable to the rules, the return-day is the appearance-day, as an appearance can be then entered at the rules.If the writ be returnable to the first day of the Court, and the same day be the rule-day, it is also the appearance-day; since an appearance may then be entered at the rules.But, if it be not also rule-day, then the next rule-day succeeding, is the appearance-day; for, that is the earliest day at which an appearance can be entered, and a rule given or received by the defendant.If, therefore, the scire facias in the case under consideration was, as is contended by the appellant's counsel, returnable to the first day of the Court, it would follow, that the surrender of the principal by the bail in this case, was not within the time prescribed by the act; and, consequently, the order exonerating the bail, erroneous.These are my impressions.But I give no decisive opinion on these points, as they are not involved in this case.

The act of 1819 required, that the forms of writs should be assimilated as nearly as may be, to the forms theretofore used in the General Court.The writs used in the General Court, were uniformly returnable in terms, " to the first day of the June Court, or November Court next," as the case might be, without specifying the time when the Court would sit, which would have been entirely superfluous.When a writ issued in a Superior Court, returnable to the first day of the next Court, there was no necessity for departing, in any degree, from the terms of the writ used in the General Court.But, if it were returnable to a rule-day, it was necessary to vary the terms of the writ, so as to make it returnable to a certain day specified to be the rule-day.This is the form of the scire facias in question.It is made returnable to " the first Monday in May, that being the rule-day," and it is not stated that the first Monday in May was the first day of the Court.The requisition to appear before the Judge is, I presume, common to writs returnable to the first day of the Court, and to the rule-day.In the latter case, there is no occasion to drop this mandate from the form of writs used in the General Court.By law, the Superior Court of Cumberland is to be holden on the first Monday after the fourth Monday in April and September.If the Clerk, in adopting a form for writs returnable to the first day of the next Court, had thought it necessary to specify the time at which the Court was to be holden, he would, of course, adopt some expression which would have been always correct, and probably have followed the terms of the law prescribing the time for holding the Court, and varied it only from necessity.As, if a writ were issued in April, he would have inserted " this month," instead of " April next."He could not, with propriety, have made writs intended to be returnable to the first day of the Court, returnable to the first Monday in May and October, uniformly; for, the Court must frequently sit on the last Monday in April and September.But writs intended to be returnable to the rule-day, might be returnable to the first Monday in May, as that was always a rule-day.I have no doubt, that the Judge examined the forms of writs used in that Court, and ascertained that the scire facias in question, was intended to be returnable and was in fact returnable, to the rule-day, and not to the Court.The act of 1819, before cited, directs that all process shall be returnable either to the first day of the next Court, or to some previous rule-day.The process in this case was not returnable either to the Court, or to a previous rule-day; the rule-day to which it was returnable, and the first day of the Court, being the same.The consequence is, that the scire facias was merely void.Process made returnable to a day which is not a legal return-day, is void;2 Black 846; and a scire facias cannot be amended; Strange, 411; although a fieri facias may be amended in the teste or return; Tidd's Practice, 391.The surrender, therefore, in this case, was in good time, and the order discharging the bail, proper.The error in giving a judgment against the defendant for the costs of the scire facias, was beneficial to the plaintiffs, and they cannot complain of it.The appellee does not complain.I think the judgment should be affirmed.

SCIRE FACIAS.

I.To Revive a Judgment or Decree.

A.Two Purposes of Writ.

1.To Revive against Same Party.

2.To Revive against New Party.

B.Parties.

1. Sci. Fa. to Revive against Same Party.

2. Sci. Fa. to Revive against New Party.

C.Averments and Recitals.

D.Variance.

1.What Constitutes.

2.How Taken Advantage of.

3.Issuing Scire Facias for Too Little--Liability of Clerk.

E.Proceedings.

1. Generally.

2.Form of Writ.

3.Return of Writ.

4. Pleas.

a. Payment.

b. Statute of Limitations.

c. Usury in Original Contract.

d. Transfer of Sufficient Assets to Sheriff under Insolvency Act.

e. Identity of Beneficiaries.

f. Right of Defendant in Contempt to First Process of Court to Plead.

5.Judgment and Execution.

a. Form.

b. Amount.

c. On Joint Judgment.

d. Not a Lien.

e. Judgment by Default.

f. Judgment by Confession.

F.Effect of Injunction to Judgment.

G.Writ Prima Facie Barred.

H.Issue of Execution within the Year.

I.Escape of Debtor in Execution.

II.Scire Facias on Recognizance.

A.General Character of Proceeding.

B.Jurisdiction.

C.Form of Writ.

1.Joint Scire Facias against Bail.

2.Following Recognizance.

3.Curative Statute.

D.Averments.

E.Variance.

F.Amendments.

G.Proceedings.

1.Service of Writ.

2.Return of Writ.

3.Abatement of First Writ.

4.Surrender of Principal.

5. Demurrer.

6. Plea.

7.Verdict and Judgment.

III.To Repeal Patent.

I.TO REVIVE A JUDGMENT OR DECREE.

For limitation to the revival of judgments, see monographic note" Limitation of Actions" appended to Herrington v. Harkins, 1 Rob. 591.As to lien of judgment, see monographic note on " Judgments" appended to Smith v. Charlton, 7 Gratt. 425.

A.TWO PURPOSES OF WRIT.--This remedy is most frequently resorted to to continue a former suit to execution; and this may be, either when this writ is required to revive a judgment by or against the same party, or when it is required to revive a judgment where there is a new party to the suit.Lavell v. McCurdy,77 Va. 763.

1.To Revive Judgment against Same Party.--The purpose of the writ of scire facias is to give notice to the defendant of an application for award of execution, which cannot be had without an order to that effect, where execution had not been sued out upon the judgment within a year and a day.Williamson v. Crawford, 7 Gratt. 202;Bolanz v. Com.,24 Gratt. 31.

2.To Revive Judgment against New Party.--The object of a scire facias to revive a judgment is to make the record consistent, by suggesting a change of parties to get an execution in new names and then show by the record why there is a departure in the execution from the judgment and justify such variance.Maxwell v. Leeson,50 W.Va. 361, 40 S.E. 420.

B.PARTIES.

1. Sci. Fa. to Revive against Same Party.

Judgment or Decree for Money--Terre-Tenants.--Where the plaintiff in a judgment or decree for...