Phipps v. Sutherland, 5013

• Decision Date: 30 November 1959
• Docket Number: No. 5013,5013
• Parties: A. M. PHIPPS, ADMINISTRATOR, ETC., ET AL. v. S. H. SUTHERLAND. Record
• Court: Virginia Supreme Court

Page 422

111 S.E.2d 422

201 Va. 448

A. M. PHIPPS, ADMINISTRATOR, ETC., ET AL. v. S. H. SUTHERLAND.

Record No. 5013.

Supreme Court of Appeals of Virginia

November 30, 1959.

A. T. Griffith, for the appellants.

Benjamin F. Sutherland, for the appellee.

JUDGE: I'ANSON

I'ANSON, J., delivered the opinion of the court.

The appellants, A. M. Phipps, Administrator, etc.; A. M. Phipps, Trustee; Burl Compton, Administrator, etc.; Earl Speer; A. W. Powers and A. M. Phipps, filed their bill in equity on April 18, 1958, to subject certain lands of S. H. Sutherland, hereinafter referred to as the appellee, to the lien of two judgments rendered in June, 1932, to which bill the appellee filed a demurrer, pleaded the statute of limitations and laches, and filed an answer to the merits. The chancellor sustained the demurrer on the grounds that this suit cannot be maintained under § 8-393, CODE OF 1950¹, since the appellants had not extended or revived the life of the judgments in accordance with § 6477, Code of 1919, as amended, now § 8-396, CODE OF 1950², and the judgments were barred by the statute of limitations. Leave to amend within twenty-one days was granted the appellants, which was declined, and the bill was thereupon dismissed.

To determine the correctness of the chancellor's decree it is necessary that we set out the relevant provisions of the statutes involved, with the amendments thereto, and apply them in the light of the allegations in the bill.

The pertinent part of § 6477, Code of 1919, which was in effect in 1932 when the judgments under consideration were obtained, provided as follows:

'On a judgment, executions may be issued within a year and a scire facias or an action may be brought within ten years after the date of the judgment, and where execution issues within the year, other executions may be issued, or a scire facias or an action may be brought within ten years from the return day of an execution on which there is no return by an officer, or within twenty years from the return * * *.'

An amendment to § 6477, Acts of Assembly, 1942, c. 125, p. 162, increased the time for the issuance of an execution from one year to ten years, and the statute was amended in other particulars unimportant to the issues involved in this appeal. After that amendment the statute remained the same until the legislature, acting on a report of the Virginia Advisory Legislative Council to the Governor and General Assembly of Virginia, amended and reenacted § 6477, as amended, Acts of Assembly, 1948, c. 136, p. 306, now § 8-396, Code of 1950.

In its report, titled 'Execution Liens and Garnishment Proceedings,' dated October 4, 1947, the Virginia Advisory Legislative Council said (at page 7):

'The Council is of opinion that the life of a judgment should not be dependent on whether or not an execution is issued; issuance of execution is a collateral matter and should therefore have nothing to do with the life of the judgment. Therefore, the Council recommends that all judgments be good for twenty years from date of rendition; and any time before the expiration of such twenty years the judgment can be revived for another twenty years by scire facias. This would be accomplished by amending Section 6477 of the Code of Virginia.'

Section 8-396, Code of 1950 (formerly § 6477, Code of 1919, as amended in 1948) reads as follows:

'On a judgment, execution may be issued and a scire facias or an action may be brought within twenty years after the date of the judgment, except that when the scire facias or action is against a personal representative of a decedent it must be brought within five years from the date of his qualification.

'All of the provisions of this section apply mutatis mutandis to any judgment obtained upon such scire facias or action as well as to an original judgment except that there may be only one revival or extension as to a personal representative. And the rights of a judgment creditor as to a purchaser for value who records his deeds shall be governed by the provisions of § 8-393.

'The provisions of this section apply to judgments obtained after June twenty-ninth, nineteen hundred forty-eight, and to judgments obtained prior to such date which are not then barred by the statute of limitations, but nothing herein shall have the effect of reducing the time for enforcement of any judgment the limitation of which has been extended prior to such date by compliance with the provisions of law theretofore in effect.'

The bill alleges that the appellants are assignees of two judgments obtained against the appellee in 1932, one on June 11 for $7,650.00, and the other on June 17 for $89,078.54, subject to certain credits. An exhibit, marked 'Abstract No. 1,' taken from the judgment lien docket and filed with the bill, which refers to the smaller judgment as judgment No. 1, shows as follows:

Execution issued on June 11, 1932, the day judgment was entered, returnable to the first Monday in September, 1932, upon which no return was made. However, a certified copy of the execution filed as an exhibit with the bill shows a return was made on September 5, 1932.

Execution issued September 7, 1932, returnable to the third Monday in September, 1932. The judgment lien docket shows no return was made, but a certified copy of the execution, with a return date of November 21, 1932, is exhibited with the bill.

Executions issued on January 24, 1933, August 7, 1933, and November 28, 1942, upon which no returns were made. The November 28, 1942, execution was returnable to the first Monday in February, 1943.

Execution issued on March 6, 1952, returnable to the first Monday in June, 1952. A return was made on March 10, 1952.

Execution again issued on April 2, 1958, returnable to the third Monday in July, 1958. No return was made.

An exhibit, marked 'Abstract No. 2,' taken from the judgment lien docket and filed with the bill, which refers to the larger judgment as judgment No. 2, shows as follows:

Execution first issued on December 31, 1932, returnable to the third Monday in March, 1933, but no return was made.

Execution again issued on April 25, 1945, returnable to the third Monday in July, 1945, but no return was made.

The bill further alleges 'that on the day of 19 , and within ten years from the said 17th day of June, 1932, execution was duly issued on said judgment [judgment No. 2] and placed in the hands of the sheriff of Dickenson County, Virginia, for enforcement of the collection thereof; and additional executions were thereafter issued upon the said judgment within ten years from the issuance of the first mentioned execution, and within ten years prior to June 29, 1948, an execution was duly issued upon said judgment and placed in the hands of the sheriff of Dickenson County, Virginia.'

The basic question involved in this appeal is whether under the 1948 amendment to § 6477, Code of 1919 (now § 8-396, Code of 1950) judgments obtained prior to the effective date of the amendment can no longer be kept alive by extending their life through the issuance of writs of fieri facias, but can be extended and kept alive only through writs of scire facias or by actions.

The appellants contend that the 1948 amendment does not have the effect of abolishing the former procedure of extending the life of their 1932 judgments through the issuance of writs of fieri facias.

In support of their contention the appellants say that the provisions of § 8-396, Code of 1950, cannot logically be construed to operate retrospectively and thereby deprive them of vested rights which had accrued under § 6477, Code of 1919, before the 1948 amendment. There is no merit in this contention.

The generally accepted rule is that statutes of limitation, or remedial statutes, are not retrospective in their application in the absence of clear legislative intent. However, it is the settled law of this State that the legislature may declare a new or an amended statute dealing solely with matters of remedy and procedure, or one not affecting vested interests and contractual rights, to have a restrospective operation. Ferguson v. Ferguson, 169 Va. Va. 77, 87, 192 S.E. 774, 777; Gloucester Realty Corp. v. Guthrie, 182 Va. 869, 873, 30 S.E.2d 686, 688; 12 Mich. Jur., Statutes, § 3, p. 183; 34 Am. Jur., Limitation of Actions, § 32, pp. 36, 37. Vested interests and contractual rights may not be impaired or destroyed, but mere matters of procedure and remedy for their enforcement or preservation may be altered, curtailed or repealed at the will of the legislature so long as a reasonable opportunity and time are afforded to enforce and protect such interests and rights. Duffy v. Hartsock, 187 Va. 406, 416, 46 S.E.2d 570, 574.

The plain language used in the 1948 amendment to § 6477 (now § 8-396, Code of 1950) shows that it was the intention of the legislature to make the statute retrospective in its application to judgments already obtained which were not then barred by the statute of limitations.

The amendment affected solely matters of remedy and procedure. The appellants were not deprived of their rights or ownership in the judgments. The amendment eliminated only the procedure of extending the life of the judgments by fieri facias after June 29, 1948, because it was recognized by the legislature to be unsatisfactory.

Appellants argue that the amendment deprives them of a vested right or claim arising out of the former law, contrary to the provisions of § 1-16, CODE OF 1950³. There is no merit in this argument.

Section 1-16, Code of 1950, prescribes a rule of construction of a new law repealing a former law where rights have accrued or arise under the former law. It has no application to a repealing statute referring solely to matters of remedy and procedure where the legislature expressly declares it shall have retroactive operation. The appellants are given no right in the strict sense to a particular mode of procedure unless they avail...