Williams v. Price , 21 Ga. 507 ( 1857 )

Benning, J.

dissenting.

The first section of the dormant judgment Act of 1823, says in so many words, that a dormant judgment “ shall be void and of no effect,” Words of stronger power of nullification are not to be found in the language.

If, therefore, these words are to be operative, a dormant judgment, as long as it remains dormant, is void and of no effect. And they are to be operative, unless there is something. outside of them to prevent it

Is there anything outside of them to prevent it?

It is said that there is, and in the proviso of the same section. The proviso is in these words, “ provided that nothing in this act contained, shall prevent the plaintiff or plaintiffs in such judgments from renewing the same after the expiration of the said seven years, in cases where, by law, he or they would be otherwise entitled so to do, but the lien of such revived judgments on the property of the defendants thereto, shall operate only from the time of such revival.”

“But the lien shall operate only from the time of such revival;” it is true that these words admit of the implication that as to everything else than lien, the revived judgment shall operate” from a time previous to that of the revival, say from the date of the judgement But this is merely saying what shall be the effect of the judgment token renewed. It is not saying anything about what is to be the effect of the judgment whilst it remains in a state of dormancy, and therefore it is not saying anything that can affect what was said in the part of the section preceding the proviso ; for what was said in that part of the section, related exclusively to the judgment'whilst in a state of dormancy.

If we admit that a judgment, when revived, is to relate back to the time when it began to be dormant for all purposes, it does not by any means follow that we make any admission of any sort, about the judgment whilst it was in a state of dormancy.

There being, then, nothing in the proviso to prevent the words of the other part of the section from having their full effect, I think that they ought to be allowed to have that effect.

No argument for construing this statute differently from this can be drawn from the construction put upon the statute of West. 2, c. 1., 45, which gives a scire facias to revive a judgment, because that statute so far from saying that the judgment whilst needing revival, should be void and of no effect, said that it should have certain “force.” ts words are “that those things that are found enrolled before them that have the record or contained in fine, whether they be contracts, covenants, 'obligations, services or customs, .recognizances or other things whatsoever enrolled, to which the King’s Court may lawfulty give effect, from henceforth shall have such force, that hereafter it shall not be necessary to implead upon them,” &c. Of course such things could not be held to be void. Rather, it was necessary to hold, that they were entitled to the presumption of being considered valid, 2 Tidd’s Pr. 1103.

I think, then, that as this judgment had not been revived, it was to be treated by the administrator as void. If it had been in a revived state, a question would have arisen as to the rank it would hold among the debts against the administrator.

In the view which I take of the case, that question does not arise, and therefore, I only say of it, that it is to me, a question of some difficulty.

For these reasons I go for affirming the judgment of the Court.