Lambson v. Moffett

• Decision Date: 29 February 1884
• Citation: 61 Md. 426
• Parties: MOSES LAMBSON v. JEREMIAH N. MOFFETT, Richard F. Moffett and Enoch I. Moffett. Same v. Same. Same v. Richard F. Moffett, Jeremiah N. Moffett and Enoch I. Moffett.
• Court: Maryland Court of Appeals

61 Md. 426

MOSES LAMBSON v. JEREMIAH N. MOFFETT, Richard F. Moffett and Enoch I. Moffett.

Same v. Same.

Same v. Richard F. Moffett, Jeremiah N. Moffett and Enoch I. Moffett.

Court of Appeals of Maryland

February 29, 1884

The causes were argued before Alvey, C.J., Stone, Miller, Irving and Bryan, JJ.

H W. Vickers, and John Prentiss Poe, for the appellant.

Richard Hynson, and Marion De Kalb Smith for the appellees.

Miller J., delivered the opinion of the court.

These appeals are from orders quashing writs of scrie facias. It appears from the records that the appellant, Lambson, on the 18th of October, 1869, recovered in the Circuit Court for Kent County three judgments, two against Jeremiah N. Moffett, and one against Richard F. Moffett. On the 3rd of February, 1870, all of them were superseded with stay of execution for six months, the two against Jeremiah N. by Richard F. and Enoch I. Moffett, and the one against Richard F. by Jeremiah N. and Enoch I. Moffett, so that these three parties all became defendants in, and bound by each of the supersedeas judgments. The further docket entries in the cases are somewhat confused, but we infer from them that writs of fieri facias were issued upon all of the judgments returnable to the October Term, 1870, to which the sheriff made return in effect that he had sold the property of Jeremiah N., but had on hand that of Richard F. and Enoch I.; and that at January Term, 1871, writs of vendi. exponas were issued against Richard F. and Enoch I. (and in one case against Jeremiah N. also,) the sheriff's return to which, in each case, was "still on hand and stayed by notice of defendants' application in bankruptcy." Nothing further appears to have been done in the cases until the 14th of April, 1882, shortly before the lapse of twelve years from the expiration of the stay of execution, when the plaintiff sued out writs of scire facias upon each of the judgments, notwithstanding there had been, in the meantime, no change of parties thereto. The defendants appeared to these writs and, at first, pleaded payment and limitations, but afterwards by leave of the court withdrew these pleas and moved to quash the writs upon the ground that at the time of issuing them the plaintiff was entitled to writs of fieri facias on the judgments. The court sustained this motion and quashed the writs; hence these appeals by the plaintiff in the judgments.

The question presented involves the construction of the Act of 1874, ch. 320, as to its effect upon writs of scire facias, and this requires a brief notice of antecedent legislation upon the same subject. But in this we need go no further back in our statutes than the Code adopted in 1860. By the laws then in force and codified in secs. 16 and 17 of Art. 29, it was provided (by sec. 16) that an execution may issue on a judgment at any time within three years from its date, where there has been no change of parties thereto by death or marriage, and (by sec. 17) within three years after the expiration of a stay thereon, entered by the clerk on the docket at the time of the rendition of the judgment, and within the same time after removal of a stay caused by injunction, supersedeas, appeal, or writ of error. By the Act of 1861-2, ch. 262, both these sections were repealed and re-enacted, so that by sec. 16 it was provided that execution by fieri facias may issue at any time within three years after the date of the judgment, or expiration or removal of a stay thereon, and that execution by way of attachment may issue at any time within twelve years after the date of the judgment, but if more than three years have elapsed after its date or expiration or removal of the stay thereon, the attachment is made subject to the same defenses by the defendant as in cases of scire facias. Some other changes were also made by this section, but they have no bearing upon the question now under consideration. By sec. 17, as thus amended and re-enacted, it was provided that if a stay be entered at the time of its rendition, or if the judgment be stayed by injunction, supersedeas, appeal, or writ of error, an execution may issue at any time within three years after the expiration or removal of such stay, but in no case whatever shall the period during which any stay law heretofore passed, or hereafter to be passed, may have been or may be in force, be computed as part of said three years. This Act was in force, and such was the state of the law in October, 1869, when the judgments in question were recovered. Afterwards the Act of 1874, ch. 320, was passed, by which sec. 16 of Art. 29, was repealed and re-enacted so as to read as follows:

"16. On all judgments rendered in any court of law, an execution or attachment may issue at any time within twelve years from the date of such judgment, and if there be a stay thereon, at any time within twelve years after the expiration or removal of such stay; when there has been no discharge" (change is obviously meant) "of parties to such judgment by death or by marriage."

While this Act manifestly repeals sec. 16 as amended by the Act of 1861-2, it does not, in terms, repeal sec. 17 as so amended and it has been argued there is no repeal of this latter section by implication, and that it is still in...