Simpson v. Minnix ( 1908 )

Mr. Justice Van Orsuee

delivered the opinion of the Court:

It is unnecessary to consider the first assignment, inasmuch as plaintiff failed to reserve any exception to the order of the court sustaining the demurrer to said pleas. This reduces the consideration of the case, as contended for by appellant in his brief, to the following questions: “Whether it is necessary, after ten years, for plaintiff to make affidaAÚt of nonpayment before he can have sci. fa.; whether he can maintain the writ when the answer of a garnishee in the nature of a plea of not guilty has been made and no further steps taken; whether fiat can be had against one of two joint judgment debtors when the sci. fa. is dismissed as to the other.” It is contended by appellant that, since more than ten years had elapsed between the date of the judgment and the issuance of the writ of scire facias, the writ could only be issued upon motion and affidavit of nonpayment.

At common law, the writ of scire facias could only be issued, after ten years from the date of the judgment, upon a motion and an affidavit that the judgment had not been paid. It is insisted that this rule of the common law, having been adopted in Maryland, is still applicable in the District of Columbia. The Code of the District, sec. 1212 to 1215 inclusive [31 Stat. at L. 1381, chap. 854], provides that every common-law judgment shall be enforceable for twelve years, and that during the twelve years, for the purpose of reviving the judgment, a creditor may issue a writ of scire facias “upon which a fiat shall be issued,” which shall extend the effect and operation of the judgment for a period of twelve years. Sec. 1018 of the Code provides: “At any time during the life of the original judgment the plaintiff may elect, instead of issuing execution thereon within the time allowed therefor, to issue a scire facias on the same, and obtain a new judgment as aforesaid.” [31 Stat. at L. 1359, chap. 854]. We are of the opinion that these provisions completely abrogate the rule of the common law on the subject of the limitation and revival of judgments in the District of Columbia. Twelve years is fixed by statute as the life óf a judgment under our Code, and at any time during that period the writ of scire facias may be issued by the creditor for the revival of the judgment by merely filing a prascipe with the clerk. The law establishes no particular date when the presumption of payment arises, and inasmuch as every other vestige of the common-law rule has been swept away by the above provisions of the Code, there is no apparent reason for holding, in the absence of statute or rule of court to that effect, that after ten years an affidavit of nonpayment must be made. This court has held that satisfaction of the judgment, when not shown of record, is matter of defense in a proceeding by scire facias on a judgment. Starkweather v. West End Nat. Bank, 21 App. D. C. 282. Payment having been held a proper matter for defense in a proceeding by scire facias before or after ten years, it cannot consistently be insisted that nonpayment should affirmatively appear as a ground for the issuance of the writ.

It is also insisted by counsel for appellant that at common law two writs on the same judgment could not be in existence at the same time, and that, since the writ of attachment in the case at bar had not been returned, the writ of scire facias could not legally issue. Appellant relies upon the doctrine announced by this court in Meloy v. Keenan, 17 App. D. C. 235. In that case issue had been joined in a suit brought in the supreme court of the District in 1884. Nothing further was done by either party for fifteen years, when notice of trial was given, and the court, on motion, dismissed the suit for nonprosecution. The judgment of dismissal was reversed, the court saying: “There is no statute or rule of court having the force of a statute, requiring a cause to be brought to trial within a given period, under penalty of forfeiture-of the right of further prosecution.” But that is not this case. Here it was a writ of attachment directed to certain parties as garnishees. The parties promptly appeared and answered, and no issue was joined upon their answer. We think that,’ at the expiration of the time allowed within which to join issue on the return of the garnishees, the writ was abandoned and the action became discontinued.

It is generally held that, in the absence of a statutory limitation, an attachment return must be made within a reasonable time, or it will be heK to be discontinued. In Wisconsin a delay of four months was held unreasonable, and the action became discontinued. Hibbard v. Pettibone, 8 Wis. 270. On the other hand, it w*as held in Kentucky that a failure for three months to make return could not be considered as an abandonment of the action. Bourne v. Hocker, 11 B. Mon. 23. In Riordan v. Britton, 69 Tex. 198, 5 Am. St. Rep. 37, 7 S. W. 50, it was held that a return eleven months after the writ was issued was allowable. In that case, however, the court required a showing of due diligence in procuring the return. In the case at bar, the writ of attachment had been outstanding for almost eleven years. The only reasonable holding that the law will permit is to the effect that the writ was abandoned and the action had become discontinued.

This brings us to a consideration of the third complaint of appellant, the discharge of the codefendant Fonda. It may bo conceded that, in the absence of statutory authority, a writ of scire facias issued against one of two joint judgment debtors is void, but a different proposition is here presented. The writ in this case was issued against both of the defendants, and both appeared in court, represented by the same counsel, and separately joined issue. Fonda set up his discharge in bankruptcy, and upon that issue was discharged by the order of the court. Counsel no sooner secured his discharge than he attempted to use the court’s action as a ground for the discharge of appellant. A failure to issue the writ against all the defendants is such an act as would be chargeable to the plaintiff or judgment creditor, but the discharge of one of the joint defendants after they have answered to the writ is by a judgment of the court. This, we think, is a most important distinction. While it is a general rule that a party must recover against all the defendants or none, tñere are some exceptions to this rule recognized by the law. It is generally held that when a defendant answering to the writ of scire facias pleads matter which goes to his personal discharge, or any matter which does not go to the writ or to the nature of the writ, or pleads such matter as constitutes a bar to the action against himself only, and of which his co-defendants could not take advantage, such a defendant may be discharged and the judgment revived against the other defendant or defendants. Coleman v. Edwards, 2 Bibb, 595. Bankruptcy is a personal defense which a defendant may interpose to a writ of scire facias, and, when properly interposed, it is the duty of the court to discharge such defendant. Freeman, Executions, 320. The bankruptcy act of 1898, sec. 16, provides as follows: “Codebtors of Bankrupts. — a. The liability of a person who is a codebtor with or guarantor or in any manner a surety for a bankrupt, shall not be altered by the discharge of such bankrupt.” [30 Stat. at L. 550, chap. 541, U. S. Comp. Stat. 1901, p. 3428.] Here is direct statutory authority for the action of the trial judge in refusing to sustain the plea of appellant. The supreme court of the District of Columbia not only has jurisdiction in bankruptcy proceedings, but derives its jurisdiction generally from Congress. Hence, the statute above quoted has binding force upon that court, and it would have been error for the court to have refused to obey its provisions.

There was no error in discharging the defendant Fonda, and entering a judgment of fiat against the appellant. . The judgment is affirmed, with costs, and it is so ordered.

Affirmed.