Thomas v. Higgs

Citation69 S.E. 654,68 W.Va. 152
PartiesTHOMAS v. HIGGS et al.
Decision Date15 November 1910
CourtSupreme Court of West Virginia

69 S.E. 654
(68 W.Va. 152)

THOMAS
v.
HIGGS et al.

Supreme Court of Appeals of West Virginia.

Nov. 15, 1910.


(Syllabus by the Court.)

1. Statutes (§ 264*)—Limitation of Actions (§ 6*)—Construction—Retrospective Effect.

The general rule is that statutes are, prima facie, to be construed as prospective and not retrospective in operation.

[Ed. Note.—For other cases, see Statutes. Cent. Dig. § 345; Dec. Dig. § 264;* Limitation of Actions, Cent. Dig. §§ 16-31; Dec. Dig. § 6.*]

2. Statutes (§ 264*)—Limitation of Actions (§ 6*)—Construction—Retrospectve Effect.

This rule is applicable to statutes remedial in nature, and applies also to statutes of limitation, unless by express command or by necessary and unavoidable implication a different construction is required.

[Ed. Note.—For other cases, see Statutes, Cent. Dig. § 345: Deo. Dig. § 264:* Limitation of Actions, Cent. Dig. §§ 16-31; Dec. Dig. § 6.*]

3. Justices of the Peace (§64*)—Execution.

Chapter 45, Acts of 1897, amending section 131, c. 50, Code 1891, giving ten years instead of three years from the date of the entry of a judgment of a justice, or the date of the last execution thereon, within which execution may issue, does not apply to judgments of justices of the peace then dormant for want of execution thereon within three years from the date of entry thereof.

[Ed. Note.—For other cases, see Justices of the Peace, Dec. Dig. § 64.*]

4. Justices of the Peace (§ 64*)—Execution.

The filing in the clerk's office of a circuit court on July 3, 1901, of the transcript of the judgment of a justice pronounced December 14, 1893, and on which no execution had previously been issued, and causing execution to be then issued thereon by such clerk, was unlawful, and did not, by virtue of the amendment of 1897 of said section 131, c. 50, Code, or otherwise, operate to revive said judgment or thereby make it the judgment of said court, as of that date, or so as to fix a new date from which the statute of limitations should begin to run.

[Ed. Note.—For other cases, see Justices of the Peace, Dec. Dig. § 64.*]

(Additional Syllabus by Editorial Staff.)

5. Judgment (§ 866*)—Scire Facias to Revive Judgment—Defenses—Limitations.

The statute of limitations is a good defense to a writ of scire facias to revive a judgment.

[Ed. Note.—For other cases, see Judgment, Cent. Dig. §§ 1603-1607; Dec. Dig. § 866.*] Error from Circuit Court, Kanawha County.

Action by J. C. Thomas, administrator of one Stockton, against John Higgs and A. C. Calderwood. Judgment for plaintiff, and defendant Calderwood brings error. Reversed and rendered.

Payne & Payne, for plaintiff in error.

J. W. Kennedy and Morgan Owen, for defendant in error.

MILLER, J. A writ of scire facias summoned defendants to show cause, if any they could, why the judgment of a justice, in favor of Smith & Stockton against John Higgs and Andrew Calderwood, partners as Higgs & Calderwood, rendered December 14, 1893, for the sum of $257.74, with interest and costs, should not be revived and execution issued thereon, in favor of J. C. Thomas, administrator of the said Stockton, deceased, the last survivor of said copartnership of Smith & Stockton, against the said defendants, Higgs & Calderwood.

The judgment below was that the judgment be revived, and that execution thereon do issue according to the writ, against A. C. Calderwood, the only defendant served, and he has brought the case here on writ of error.

It is shown, indeed conceded, that no execution had ever issued on said judgment within three years from the date of entry thereof, pursuant to section 131, c. 50, Code 1891, as that section stood prior to the amendment thereof by chapter 45, Acts of 1897. Before the amendment execution might issue on the judgment of a justice "at any time within three years from the entry of the judgment or the date of the last execution issued thereon, or if the judgment be revived, from the date of such revival." As amended, the statute now reads, "at any time within ten years from the entry of the judgment or the date of the last execution issued thereon, or if the judgment be revived, from the date of such revival."

Prior to the judgment appealed from there had never been any revival of the judgment of the justice. Support of the...

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22 cases
  • State Of West Va. Ex Rel. Town Of South Charleston v. Partlow, (No. 10145)
    • United States
    • Supreme Court of West Virginia
    • July 6, 1949
    ......E. 614, 13 Ann. Cas. 1150; Stewart v. Vandervort, 34 W. Va. 524, 12 S. E. 736, 12 L. R. A. 50. This rule applies to remedial statutes. Thomas v. Higgs and Calderwood, 68 W. Va. 152, 69 S. E. 654, Ann. Cas. 1912A 1039; Fowler v. Lewis' Adm'r., 36 W Va. 112, 14, S. E. 447. There is a ......
  • Taylor v. State Compensation Com'r, 10711
    • United States
    • Supreme Court of West Virginia
    • March 8, 1955
    ......516, 16 S.E.2d 920; Central Trust Company v. Hall, 106 W.Va. 494; Harrison v. Harman, 76 W.Va. 412, 85 S.E. 646; Thomas v. Higgs, 68 [140 W.Va. 585] W.Va. 152, 69 S.E. 654, Ann.Cas.1912A, 1039; Barker v. Hinton, 62 W.Va. 649, 59 S.E. 614, 13 Ann.Cas. 1150; Burns v. ......
  • Roderick v. Hough
    • United States
    • Supreme Court of West Virginia
    • December 12, 1961
    ......667, 102 S.E. 494; Morris, Adm'r. v. Westerman, 79 W.Va. 502, 92 S.E. 567, 3 A.L.R. 1237; Harrison v. Harman, 76 W.Va. 412, 85 S.E. 646; Thomas v. Higgs & Calderwood, 68 W.Va. 152, 69 S.E. 654, Ann.Cas.1912A, 1039; Barker v. Ninton, 62 W.Va. 639, 59 S.E. 614, 13 Ann.Cas. 1150; Burns v. Hays, ......
  • State Ex Rel. Town Of South Charleston v. Partlow
    • United States
    • Supreme Court of West Virginia
    • July 6, 1949
    ......614, 13 Ann.Cas. 1150; Stewart v. Vandervort, 34 W.Va. 524, 12 S.E. 736, 12 L.R.A. 50. This rule applies to remedial statutes. Thomas v. Higgs & Calderwood, 68 W.Va. 152, 69 S.E. 654, Ann.Cas.1912A, 1039; Fowler v. Lewis' Adm'r, 36 W.Va. 112, 14 S.E. 447. There is a ......
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