Weaver v. Boggs

• Decision Date: 25 June 1873
• Citation: 38 Md. 255
• Parties: LEVI WEAVER v. WILLIAM BOGGS.
• Court: Maryland Court of Appeals

38 Md. 255

LEVI WEAVER v. WILLIAM BOGGS.

Court of Appeals of Maryland

June 25, 1873

APPEAL from the Baltimore City Court.

The facts of the case are sufficiently stated in the opinion of the Court.

The cause was argued before BARTOL, C.J., STEWART, BOWIE, MILLER and ALVEY, J.

H E. Johnson and Wm. S. Waters, for the appellant.

No judgment of another State can be enforced in this State against a citizen resident here, unless the Court rendering the judgment has acquired jurisdiction over the defendant by actual service of process upon him. The judgment may be perfectly valid in the jurisdiction where rendered and enforced there, but without this requisition, it cannot be enforced here. The law which substitutes constructive notice for actual notice is binding upon persons domiciled within the State where such a law prevails, but can bind no one beyond its limits. Wharton's Con. of Laws, 792 812; Story's Con. of Laws, secs. 539, 540, 546 547; Shaw vs. Gould, Law Reports, 3 Eng. and Irish Appeals, 55, 81; Bischoff vs. Wethered, 9 Wall., 812; Kerr vs. Kerr, 41 N Y., 275; Webster vs. Reid, 11 How., 460; Boswell's Lessee vs. Otis, 9 How., 350; Kilburn vs. Woodworth, 5 John., 40; Robinson vs. Ward, 8 John., 86; Bissell vs. Briggs, 9 Mass., 464; Fenton vs. Garlick, 8 John., 194.

This rule is based upon international law, and upon that natural protection which every country owes to its own citizens. It concedes the jurisdiction of the Court to the extent of the State where the judgment is rendered, but upon the principle that it would be unjust to its own citizens to give effect to the judgment of a foreign tribunal against them when they had no opportunity of being heard, its validity is denied. This is perfectly consistent with the Constitution of the United States, determining the validity of judgments in the several States.

This case comes within the scope of the above proposition.

1st. A writ of sci. fa., although a judicial writ to enforce a record of which the Court who issues it is in possession, is nevertheless considered in law an action and in the nature of a new original. This is so because the defendant may plead thereto; the writ requires the party to be affected by it to have notice and appear and show cause in his defence. Evans' Pr., (Old Ed.,) 171; 5 Com. Dig., T. N. Pl., 3 L., 3; 1 T. R., 267, 388; Pulteney vs. Townson, 2 Black., 1227; 1 How. ( Miss.,) 267; Batchelor vs. Ellis, 7 D. & E., 337; Co. Lit., sec. 505, folio 290 b. & 291; 2 Tidd's Pr., 1090; Foster on Sci. Fa., 73 L. L., 5, 6, 13, 252; Sabine vs. Field, 1 Cr. & M., 466.

2nd. It is so far an original suit that it requires a new appearance for defendant, and an authority to appear in the original suit is not sufficient to authorize an appearance to the sci. fa. 2 Tidd's Pr., 1090; 1 Tidd's Pr., 94; 10 Cl. & Fin., 319.

3rd. The fiat is a new judgment and a new record.-- Ibid. Mullikin vs. Duvall, 7 Gill & John., 355; Holmes vs. Newland, 5 Q. B., 370.

4th. The original judgment in this case being over twenty years old, by presumption of law was paid, and upon a sci. fa., without any plea in reference to its age, the burden of proof would be upon the plaintiff to show that it was not paid.

In England, in view of the injustice of entering a judgment of any considerable age upon the return of two nihils, there are provided modes of guarding against abuse. McElmoyle vs. Cohen, 13 Pet., 327; Foster on Sci. Fa., 73 L. L., 355; Coke vs. Humphreys, 14 Searg. & Rawle, 15.

5th. The judgment of fiat upon two nihils has always been considered unfair, and Courts will, where it is possible, relieve against it. There was no notice to the appellant.

Writs of sci. fa. form no exception to the general rule, and although the return of two nihils is equivalent to notice in the jurisdiction which renders the judgment, yet it is not so considered in another jurisdiction where such judgment is sought to be enforced. See previous cases and Kilburn vs. Woodworth, 5 John., 40; Robinson vs. Ward, 8 John., 86; Fenton vs. Garlick, 8 John., 194; Foster on Sci. Fa., 73 L. L., 365, 14; Jac. Law Dic., Title Sci. Fa.; 2 Wms. Saund., 72 (v) note; 2 Tidd's Prac., 1105; Starr vs. Heckart & Young, 32 Md., 267 ; M'Cormack vs. Deaver, 22 Md., 193; Wernwag vs. Pawling, 5 G. & J., 510.

William A. Fisher, for the appellee.

No difficulty was presented by the lapse of time, and limitations had not intervened, even if the question could now be made after judgment on the scire facias. Lesley vs. Nones, 7 Searg. & Rawle, 409; Chambers vs. Carson, 2 Wharton, 365; Chambers vs. Carson, 2 Wharton, 9; Compher vs. Anawalt, 2 Watts, 490; 1 Tidd's Pr., (16.)

No other notice than two returns of nihil was necessary. This is the law of Pennsylvania, and the common law. Chambers vs. Carson, 2 Wharton, 365.

The scire facias re-invest the judgment with all the attributes of the original judgment.-- Moore vs. Garretson, 6 Md., 448. The scire facias on a judgment is a judicial writ applicable only to cases in which the Court had once acquired jurisdiction. 2 Tidd's Pr., 1090; Underhill vs. Devneux, 2 Wms. Saunders, 72 F. note.

It is conceded that the Court acquired jurisdiction of the person of the appellee to render the judgment in 1836. Such being the case, it had jurisdiction of the cause until satisfaction of the judgment, and no new personal service was necessary to give the Court power to do any further act in the cause; it had forever jurisdiction over the person and the subject. Certainly if Weaver had remained in Pennsylvania, it could not be denied that the judgment on the scire facias would be sufficient after two returns of nihil--because it was an attribute of the original judgment itself, that it might be perpetuated indefinitely by means of such issue and return, and to deny to such judgment on the scire facias the same validity in Maryland that it had in Pennsylvania is to deny to it that "full faith and credit," which the Constitution of the United States guarantees to it.

The scire facias is in the nature of an action, as the defendant may plead to it, but it is still only a judicial writ. Foster on Sci. Fa., 73 Law Lib., (13); 2 Tidd's Prac., (1090.)

It does not partake of the nature of an original writ. 1 Tidd's Prac., (16); Crepps vs. Durden, 1 Smith's L. Cases, (816,) (820-821.)

MILLER J., delivered the opinion of the Court.

The cause of action stated in the declaration in this case is a judgment rendered against the appellant in favor of the appellee in the Court of Common Pleas, Lancaster County, Pennsylvania, on the 26th of April, 1869. The defendant pleaded, among other pleas, that he was never served with, nor had any notice of any process in the action in which the alleged judgment was recovered. The plaintiff replied and relied upon returns of nihil to two successive writs of scire facias upon a judgment recovered by him against the defendant in the said Court of Common Pleas in 1836, and judgment after such returns of nihil in 1869. The defendant rejoined, first that the judgment alleged in the replication as recovered in 1836, was rendered more than twenty years before the issuing of said writs of scire facias, and second, that the defendant was a citizen of Maryland, and had resided therein continuously for more than twenty years next before the alleged writs were issued, and hath since resided in Maryland, and had no actual notice of said writs, or either of them. The plaintiff demurred to these rejoinders, and the Court below sustained the demurrer, and gave judgment thereon in favor of the plaintiff.

The question thus presented by the pleadings is, can a suit be maintained in the Courts of this State upon a judgment of a Court of another State, rendered upon returns of nihil to two successive writs of scire facias issued to revive a judgment in the foreign Court of more than twenty years standing, where the defendant in the original judgment had, for more than twenty years next before the issuing of the writs, resided in this State out of the jurisdiction of the Court that rendered the judgment, and had no notice of such writs? The same question is presented by the rejection of the defendant's prayer in the third exception, and substantially also by the ruling in the second exception. In this last mentioned exception there is an agreement that the decisions of the State Courts of Pennsylvania shall be read as evidence of the law of that State applicable to the case, and from that agreement we infer that this Court is at liberty to consider the Pennsylvania decisions not simply as authorities, but as evidence, and apply them as such in this case so far as may be necessary in the determination of the question before us.

Upon looking to those decisions we find there is in that State no period of limitations prescribed by statute for the bringing of actions upon judgments, yet it has been distinctly announced as the law there, that if a judgment be suffered to stand for twenty years with no steps in the meantime taken to revive it or keep it alive, in part payment, and no explanation or accounting for the delay, it is presumed to be satisfied, and in such case that presumption is a presumption of law, and the fact of actual payment and satisfaction is not to be submitted as an open question for the belief of a jury. Cope vs. Humphreys, 14 Seargt. & Rawle, 15. We have neither seen nor been referred to any decisions of...