Smith v. Hutchinson
| Decision Date | 13 March 1884 |
| Parties | SMITH v. HUTCHINSON AND ALS. |
| Court | Virginia Supreme Court |
Error to judgment of circuit court of Prince William county rendered October 12th, 1881, upon error to judgment of county court of said county, refusing to renew, by scire facias, a judgment for $1,172.45, with interest and costs, in favor of appellant, Thomas A. Smith, against R. P Hutchinson, Thomas K. Davis, and S. P. Bayly. The writ was duly served and docketed at term to which returnable, and continued to next term; but defendants appeared not. County court, in effect, of its own motion, interposed the defence of the statute of limitations and denied revival. On error circuit court reversed county court's judgment, and remanded the cause back to the latter court for trial.
Opinion states the case.
C E. Nichol, for plaintiff in error.
Wm. H. Payne, for defendants in error.
On the 2d day of March, 1881, Thomas A. Smith sued out from the clerk's office of Prince William county a writ of scire facias to renew a judgment theretofore--to wit: on the 10th day of November, 1859, in the county court of said county--recovered by said Thomas A. Smith against R. P. Hutchinson, Thomas K. Davis, and S. P. Bayly, for the sum of $1,172.45, with interest thereon at the rate of six per centum per annum from the 2d day of May, 1859, till payment, and $8.11 costs. The writ, which appears at large in the record, is in the usual form in such cases. It is dated on the said 2d day of March, 1881, and made returnable to the 1st day of the then next March term, 1881, of the county court of said county of Prince William. On said writ these endorsements appear:
In the body of the writ, after making the usual recitals, it is said: & c.
With service thereof duly acknowledged, the said writ of scire facias was returned to the county court of said county on the 1st day of the March term thereof, which occurred on the 7th day of that month, and was then docketed and continued. At the next succeeding term of said court, commencing on the 4th day of April, 1881, none of the defendants appeared, demurred or pleaded to said writ, and the plaintiffs insisted upon a judgment, but the said county court refused to give judgment for the plaintiff, and entered its judgment, founded, it seems, upon the interposition by the court of its own motion, of the statute of limitations, as a bar to the plaintiff's motion; which judgment of said county court is, in substance, this:
" This day came the plaintiff by his attorney, and the motion to waive being argued by the plaintiff's attorney, and the court, without passing upon evidence, and inspecting the scire facias, and the copy of the execution, by which it appears that no return was made on the said execution within two years from its issuing from the clerk's office, it is ordered that the said motion be overruled."
To which ruling and judgment of the said county court the plaintiff excepted; and thereupon the plaintiff applied to and obtained from the judge of the circuit court of said county a writ of error to the judgment of said county court.
On the 12th day of October, 1881, the case came on for hearing before said circuit court upon the record of the proceedings had in said county court, when a judgment was rendered by said circuit court as follows:
To this judgment a writ of error was allowed by one of the judges of this court.
It is necessary first to enquire into the propriety of the judgment of the county court. The writ of scire facias had been duly served, or, in other words, due and legal service of the same had been acknowledged; the writ was returned to and docketed at the term of the court to which it was made returnable, and was then continued to the next term of said court, when, no appearance being made by either of the defendants, and no demurrer, plea or other defence being offered, the plaintiff moved for judgment, and the court, as shown by its judgment, without passing upon evidence, of its own motion interposed the statute of limitations and refused to give judgment for the plaintiff, that he have execution against the defendants of the debt, interest and costs, according to the judgment set forth in said writ of scire facias.
This judgment of the county court is clearly erroneous. The defence of the statute of limitation is a personal privilege, and to be made availing must be pleaded by the defendant. The court sits to determine all questions of law and practice under established rules, and not to interpose or plead, as in effect it did in this case, special defences for defendants who, by their conduct in failing to appear and make defence, in effect say they cannot gainsay the plaintiff's right to revive the judgment in the scire facias mentioned. 1 Rob. Pr. (old ed.), 586; Jones v. Carter, 6 Munf. 105.
Our statute, § 12, ch. 182, Code 1873, provides that: " On a judgment execution may be issued within a year, and a scire facias or 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 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 day of an execution on which there is such return." Then follow the exceptions. By the succeeding 13th section, of the same chapter, it is declared: " No execution shall issue, nor any scire facias or action be brought, on a judgment in this State, other than for the Commonwealth, after the time prescribed by the preceding section." Then follow the enumerated exceptions to that section. The law, as it formerly stood,...
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