Otterback v. Patch , 5 App. D.C. 69 ( 1894 )

Mr. Chief Justice Alvey

delivered the opinion of the Court:

If the case had been presented on the demurrer originally interposed to the writ of scire facias, there would have been no difficulty in declaring the writ radically defective. It fails to set out the several intervening judgments for execution, if there were such judgments had, so that the court could see and determine upon the effect and sufficiency of such judgments for execution. The writ of scire facias to revive a judgment is in the nature of a declaration, and should contain upon its face, such a statement of facts, as will justify the form in which the process issues, and the persons who are made parties to it. Prather v. Manro, 11 Gill & John. 261, 265; Warfield v. Brewer, 4 Gill, 265; McKnew v. Duvall, 45 Md. 501. It is laid down in the books as a settled principle in the law of scire facias, that the writ to revive a judgment is not merely a form of summons or citation to the defendant, but it also serves the purpose of a declaration to which the defendant may plead or demur, as to any other declaration; and where a legal title to have execution of the original judgment is not set out in the writ, judgment may be arrested as for want of a sufficient cause of action stated. And each successive writ of scire facias to revive a judgment must be founded upon the judgment which immediately precedes it, and contain the recitals of all preceding judgments (Freeman on Ex., Secs. 93, 94); for a recovery upon a writ of scire facias is to be considered, for many purposes, as a new judgment, and has all the legal attributes of the original upon which the scire facias is founded ; and is a bar to any subsequent recovery upon the original judgment. Mullikin v. Duvall, 7 Gill & John. 355; 1 Black on Judgts. Secs. 482, 486; 2 Freeman on Judgts. Sec. 444. And for form of thé judgment on scire facias, see 2 Harris’s Entries, 140, and Brown v. Chesapeake and Ohio Canal Company, 4 Fed. Rep. 770.

That there were many errors and irregularities in the several successive writs of scire facias, issued for revival of ■ the original judgment, would seem to be clear; but those errors and irregularities are not within the reach of an appellate court for correction ; as there were no exceptions taken to the rulings of the court below.

In the trial of an issue made on a plea of nul tiel record, to a scire facias on judgment, the court decides by an inspection of the record; but the record inspected makes no part of the proceedings of the case on trial; and the decision of the lower court can be reviewed only by means of a bill of exception, setting forth the record offered, and the ruling thereon, to which exception is taken. Dorsey v. Whetcroft, 1 Har. & John. 463; Ayres v. Kain, 3 Gill & John. 24; Mullikin v. Duvall, 7 Gill & John. 355; Le Strange v. State, 58 Md. 41.

And so, in respect to the ruling on the trial of the plea of the Statute of Limitations, if there be no exception to such ruling, or no special verdict found, setting forth the facts upon which the ruling of the court is made, an appellate court cannot review the decision of the court below on the decisions thus made. There must be an exception taken to the ruling of the court complained of. In this case, there is no question presented for review here, and it follows, that the judgment appealed from must be affirmed.

Judgment affirmed, with costs to the appellees.