Mccallum v. Gornto

• Decision Date: 27 April 1937
• Citation: 174 So. 24,127 Fla. 792
• Court: Florida Supreme Court
• Parties: McCALLUM v. GORNTO.

174 So. 24

127 Fla. 792

McCALLUM v. GORNTO.

Florida Supreme Court

April 27, 1937

Error to Circuit Court, Lafayette County; R. H. Rowe, Judge.

Proceeding in scire facias to revive judgment by Homer T. Putnal and Z h. Putnal, as assignees of and in the name of J. M. Gornto as receiver of the Citizens Bank of Mayo, against John McCallum. To review the judgment, defendant brings error.

Affirmed.

DAVIS and BROWN, JJ., dissenting in part.

COUNSEL J. M. Hearn, of Live Oak, for plaintiff in error.

T. J Swanson, of Perry, for defendant in error.

OPINION

BUFORD, Justice.

Defendant in error, Gornto, as receiver of Citizens Bank of Mayo recovered a judgment for money damages against plaintiff in error, McCallum, on November 25, 1924. Smith, as liquidator later succeeded to the administration of the affairs of the defunct bank. He assigned the judgment to one Elliott and Homer T. and Z. H. Putnal. Afterward Elliott assigned his interest in the judgment to Homer T. Putnal. Thereafter, the Putnals filed a petition in scire facias to revive the judgment, doing so in the name of the original plaintiff Gornto. Writ of scire facias issued, was served and returned, and respondents appeared in their proper person.

A default judgment was filed June 1, 1936, and entered by the clerk on October 30, 1936. Judgment awarding a writ of execution and taxing the costs of proceedings against respondents was filed November 4, 1936. Writ of error was sued out on December 3d.

There are three questions presented. The first is: 'May the assignee of a dormant judgment for damages maintain scire facias proceedings to revive such judgment, and have a writ of execution thereof, all in the name of the original plaintiff?'

The plaintiff in error contends that this could not lawfully be done.

The plaintiff in error relies upon what is said in the case of Sammis v. Wightman, 31 Fla. 45, 12 So. 536. It will be observed that the holding in that case applies to suits in equity to enforce the judgment against the alleged assets of a judgment debtor.

The instant case is ruled by the opinion and judgment in the case of Massey v. Pineapple Orange Co., 87 Fla. 374, 100 So. 170, 171, where, in a well-considered opinion by Mr. Justice Ellis, it was said: 'An execution is a remedy, not an action, and no action is necessary to obtain it except when a judgment becomes dormant; then, so far as the proceeding by scire facias is an action, the judgment may be revived so that execution under the statute may issue thereon. The proceeding is not original, but a continuation of the former action. See Black on Judgments, 732-738; 10 R.C.L. 1217; 2 Freeman on Judgments, 620-623.' And further in that opinion it was said: 'The proper judgment in scire facias to revive a judgment is that the plaintiff have execution for the judgment mentioned and costs. See Brown v. Harley, 2 Fla. 159. Judge Lancaster, speaking for the court, said: 'That is a case of scire facias to revive a judgment and is not an original but a judicial writ, founded on some matter of record, to enforce execution of it, and properly speaking is only the continuation of an action. A step leading to the execution of a judgment already obtained and enforcing the original demand for which the action was brought. It creates nothing anew, but may be said to reanimate that which before had existence, but whose vital powers and faculties are as it were suspended, and without its salutary interference would be lost. 2 Sellon's Prac. 187, 188.”

In 24 R.C.L. p. 674, it is said: 'A proceeding for a scire facias must ordinarily be prosecuted by and in the name of the person that appears by the record to be the plaintiff in the judgment, or after his death in the name of his personal representative.'

This was not a suit in equity to impress the lien of the judgment which would have been a new and independent suit and, therefore, should have been brought in the name of the real parties at interest. The judgment in scire facias simply revives the dormant judgment and execution and brings it into force and effect the same as it was when originally entered.

The second question is: 'May a valid default judgment be entered by the Clerk on a date other than the next day after a rule day?'

It is not necessary to answer this question because the default judgment was entirely surplusage. The command of the writ was, after stating the showing made: 'Therefore, you are commanded to make known to the said John McCallum and the said Leon R. McCallum that they be before the Judge of our said Court at the Clerk's office at Mayo, Florida, on Monday, the 4th day of May, 1936, next, to show cause, if any they have or know of any cause, why the said Homer T. Putnal and Z. H. Putnal ought not to have their execution against the said John McCallum of the damages aforesaid according to the force, form and effect of said recovery if he shall think it expedient so to do; and further to do and receive what our said Court, before our said Judge thereof, shall then and there consider of them in this...