O'Neill & Co., Inc. v. Schulze
| Citation | 7 A.2d 263,177 Md. 64 |
| Decision Date | 05 July 1939 |
| Docket Number | 5. |
| Parties | O'NEILL & CO., Inc., v. SCHULZE. |
| Court | Court of Appeals of Maryland |
Appeal from Superior Court of Baltimore City; Eugene O'Dunne Judge.
Action by O'Neill & Company, Incorporated, against Carrie W Schulze, wherein the plaintiff recovered a judgment for $785.28, on which the plaintiff caused a scire facias to be issued to revive it, and a judgment of fiat nisi was entered and a fiat executio was issued. From an order striking out the sheriff's return on the scire facias and the fiat nisi and fiat executio, the plaintiff appeals.
Affirmed in part and reversed in part and remanded.
B. H Hartogensis, of Baltimore, for appellant.
J. Calvin Carney and Charles G. Page, both of Baltimore, for appellee.
Argued before BOND, C.J., and OFFUTT, PARKE, SLOAN, MITCHELL, SHEHAN, JOHNSON, and DELAPLAINE, JJ.
This appeal is from an order striking out a judgment of fiat nisi on a judgment against which limitations had run when a writ of scire facias had been issued.
On July 30, 1924, O'Neill & Co., Inc., the appellant recovered a judgment against the appellee, Carrie W. Schulze, for $785.28. The appellant, O'Neill & Co., caused a writ of scire facias to be issued out of the Superior Court of Baltimore, June 27, 1938, fourteen years after the original judgment, to revive it, returnable the second Monday of July (11th) 1938. The return of the sheriff was that it was made known to the defendant, Carrie W. Schulze, the day of its issue, June 27, 1938. The defendant did not appear on the return day, and had not filed a plea or motion to quash, and a judgment of fiat nisi was entered. The next return day, August 8, 1938, a fiat executio was issued. Nothing further was done until August 17, 1938, within the May Term, 1938, when the defendant filed a petition (or motion) to strike out the original judgment, the sheriff's return on the scire facias, the judgment of fiat nisi, and the fiat executio. The court refused to strike out the original judgment, which was not argued on appeal, and granted the remaining prayers of the petition, from which action in striking out the return, the fiat nisi and fiat executio the plaintiff appeals.
The defendant's testimony is that she did not understand or comprehend what the deputy sheriff, who served the writ, was reading to her, but admitted it pertained to a claim or demand on her of O'Neill & Co. With all the presumptions in favor of the sheriff's return, it cannot be set aside upon the statement that she did not know what it was about. Her flat denial, without other evidence, facts or circumstances to support her would not be sufficient. Parker v. Berryman, 174 Md. 356, 198 A. 708; Weisman v. Davitz, 174 Md. 447, 199 A. 476.
It is conceded in this case that the sheriff when he served the sci.fa. on the defendant did not leave a copy of the writ with her. The evidence in the record is that it has not been the practice of the Superior Court to make copies of writs of sci. fa., but that it is the uniform practice of the City and Common Pleas courts to furnish a copy to be left by the sheriff with the defendant.
The authority in this State for a scire facias to revive or extend a judgment is section 20, Article 26, of the Code, which says: 'On all judgments or decrees in any court of law or equity * * * an execution or attachment may issue out of such court or by the clerk thereof, at any time within twelve years from the date of the judgment or decree, or the said judgment or decree may be otherwise proceeded against within twelve years from its date; * * * provided, that at any time before the expiration of twelve years from the date of any such judgment or decree * * * the plaintiff shall have the right to have a writ of scire facias to renew or revive the same.'
When a judgment has become twelve years old, unless renewed within that time, it ceases to be a lien on the real estate of the judgment debtor, and is displaced and superseded by existing and subsequent liens, and the gap is not covered by scire facias and judgment of fiat thereon after the expiration of the twelve year limitation on the original judgment. Post v. Mackall, 3 Bland 486, 518; Hodges v. Sevier, 4 Md. Ch. 382. If the language of the statute (Code, Art. 26, sec. 20) were to be taken literally a judgment creditor who did not proceed within twelve years could not renew or revive his judgment, for it reads: * * * that at any time before the expiration of twelve years from the date of any such judgment * * * the plaintiff shall have the right to have a writ of scire facias to renew or revive the same'. Whatever rights a judgment creditor has are derived from statute (Caltrider v. Caples, 160 Md. 392, 394, 153 A. 445, 87 A.L.R. 1500), and the implication from this statute is that if the plaintiff does not proceed within twelve years he cannot proceed at all. In this state, however, it has been held that a stale judgment may be renewed by scire facias unless resisted by a plea of limitations, nul tiel record, payment, release, accord and satisfaction or bankruptcy. Poe's Practice, Tiffany Ed., §§ 602-606; 24 R.C.L. 680. As said in Poe's Practice, Tiffany Ed., § 690, '* * * although the language of the statute is very imperative and mandatory, still it is to be construed as in other cases--as merely meaning that the action will be barred if the defense be taken, and not otherwise'. Mullikin v. Duvall, 7 Gill. & J. 355, 359; Johnson v. Hines, 61 Md. 122, 127; Jones v. George, 80 Md. 294, 30 A. 635; Warfield v. Brewer, 4 Gill. 364.
The chief contention of the appellee is that the writ of scire facias is so much in the nature of a declaration, that the Rule Day Acts apply. The Plaintiff, appellant, on the other hand contends that the rule day Act, which requires a copy of the declaration to be left with the defendant, does not apply, yet invokes the Act in its motion for a judgment by default for want of a plea. The Rule Day Act for Baltimore City is the Act of 1864, ch. 6, as amended by the Act of 1886, ch. 184, Charter of Baltimore City, Sections 395 to 403, Local Code, Art. 4, secs. 303 to 311. By the Act of 1864, which was not amended, return days, in addition to the first days of the regular January, May and September terms, were provided for the second Monday of each of the other nine months of the year, but the three terms continued as theretofore established.
There is no uniformity of opinion as to whether a writ of scire facias is to be treated as a declaration or a writ. Foster Writ of Scire Facias, 73 Law Lib. 11, said: 'It is only a quasi continuation of the former suit, brought merely to revive the former judgment, and is then properly called a writ of execution'. In Owens v. McCloskey, 161 U.S. 642, 16 S.Ct. 693, 694, 40 L.Ed. 837, it was said that: 'Ordinarily, the writ of scire facias to revive a judgment is a judicial writ, to continue the effect of, and have execution of, the former judgment, although in all cases it is in the nature of an action, as defendant may plead any matter in bar of execution, as, for instance, a denial of the existence of the record, or a subsequent satisfaction...
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