Smith v. Carlson
| Decision Date | 19 January 1956 |
| Docket Number | No. 33739,33739 |
| Citation | 8 Ill.2d 74,132 N.E.2d 513 |
| Parties | Russell E. SMITH et al., Ex'rs, Appellants, v. John B. CARLSON et al., Appellees. |
| Court | Illinois Supreme Court |
Hoover & Scheele, Chicago (John F. Hoover, Chicago, of counsel), for appellants.
Lawrence S. Adler, Chicago, for appellees.
Petition for leave to appeal from a judgment of the Appellate Court affirming the order of the circuit court of Cook County dismissing a scire facias proceeding to revive a judgment has been granted. The issue presented here on appeal is whether a judgment may be revived in a scire facias proceeding where the affidavit for revival of the judgment by scire facias has been filed and the original scire facias writ has been issued before the expiration of the twenty-year limitation period but an alias scire facias writ, with a return date after said limitation period, has been issued after the expiration of the twenty-year period.
The statutory provision in question is to be found in section 25 of the Limitations Act (Ill.Rev.Stat.1953, chapter 83, par. 24b), which follows:
'Judgments in any court of record in this State may be revived by scire facias, or by ordinary civil action in lieu of scire facias as provided by the Civil Practice Act, and all existing and future amendments thereto, or a civil action may be brought thereon within twenty years next after the date of such judgment and not after; and the provisions of the foregoing section shall apply also to this section: Provided, however, that actions to revive judgments in any court of record in this State by scire facias shall be commenced by affidavit of the judgment creditor or creditors, his or their agents, attorneys or assigns, setting forth a description of the original judgment by title of the action, date and amount thereof, together with a statement of any partial satisfaction of such original judgment that may appear of record at the time of making such affidavit, also setting forth a written designation of the return day for the writ.
The appellant contends that this statute makes no distinction between scire facias and an action on the judgment in permitting the revival of a judgment if the action is 'brought' within twenty years next after the date of the original judgment, and the new judgment, in either proceeding, may be entered before or after the expiration of the twenty-year limitation period. The appellee argues that a scire facias proceeding to revive a judgment is merely a continuation of the old action to revive the judgment just as it formerly existed and the revivor must be before the judgment expires, that is, within twenty years next after the date of the judgment. The Appellate Court adopted the latter view.
We cannot agree with this interpretation of this statute. In Vol. 34 of Corpus Juris, sec. 1023b of Judgments it is stated: ...
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Estate of Mcgrath v. McGrath (In re Re)
...and the procedure to revive a judgment under section 2-1602 of the Code are "concurrent and identical remedies." Smith v. Carlson, 8 Ill. 2d 74, 77, 132 N.E.2d 513, 515 (1956). Accordingly, as was true under the doctrine of scire facias, the only defenses to a petition to revive a judgment ......
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First Nat. Bank of Marengo v. Loffelmacher
...ch. 110, par. 13-218].)" (Smith v. Carlson (1955), 6 Ill.App.2d 271, 272-73, 127 N.E.2d 257, rev'd on other grounds (1956), 8 Ill.2d 74, 132 N.E.2d 513.) The court went on, then, to observe that "there are three types of limitations on judgments--first, a limitation on their vigor as a lien......
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Prairie Production Credit Ass'n v. Bianucci
...ch. 110, par. 12-101). At common law, the method for reviving judgments was through a proceeding in scire facias (see Smith v. Carlson (1956), 8 Ill.2d 74, 132 N.E.2d 513). Section 2-1601 of the Code abolished that procedure and states that relief formally obtained in such a proceeding may ......
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Burman v. Snyder, 1–13–0772.
...a later petition need not be filed to make the judgment enforceable in the future. For support, Burman relies on Smith v. Carlson, 8 Ill.2d 74, 132 N.E.2d 513 (1956). In Smith, a common law scire facias proceeding, the plaintiff filed his affidavit for revival of judgment 5 days before the ......