Butler v. James , 33 Ga. 148 ( 1862 )

By the Court —

Lumpkin, J., delivering the opinion.

Is the decree rendered in this case, at the April Term, 1850, of McIntosh Superior Court, dormant?

It is admitted that, except for the provisions of the Acts of 1822 and 1823, there was no limitation to the operation of judgments and decrees in Georgia. They are good forever, without renewal. Does this decree, which is not for the payment of a sum of money, but for the performance of a duty, namely, the delivery over of property, fall within either the letter or spirit of the Acts of 1822 and 1823?

What was the mischief that those statutes were intended to prevent? It is specified in the preamble to the Act of 1822, to which the Act of 1823 was supplemental and amendatory, The preamble recites, that dormant judgments are collusively kept open, and thereby made the instruments of fraud on innocent purchasers, and often operate oppressively on vigilant and bona fide creditors. Hence the enactment that all judgments signed and verdicts rendered’at the same term of the Court,' be considered, held and taken to be of equal date; and that if no execution be sued out, on which execution, if sued out, no return shall be made by the proper officer for executing and returning the same within seven years from the date of said judgment, shall be void and of no effect. The law further provides, that plaintiffs may renew said judgments after the expiration of seven years, but the lien of the renewed judgment shall only operate on the property of the defendant from the timei of such renewal.

It is obvious, from a perusal of the acts, that they contemplated only judgments at common law. For apart from the rule that where cases generally are mentioned in a statute, the word will be held to embrace only cases of common law, though wide enough to include equity causes, the reference throughout is to suits at common law, and the technical words, verdicts and judgments are used throughout the Act ; and, in addition to this, it refers to judgments and verdicts that are to be enforced by execution, and not by attachment, and such other proceedings as are usual in equity. Again, the Act says that the lien of the renewed judgment is only to take effect from the time of its renewal. The law, then, applies to judgments which fixed a lien on the defendant’s property.

Hence this Court held that a decree in equity for a specific sum of money, was within the mischief of the Act. ’ 8 Georgia Reports, 32. And this decision was in accordance with the spirit of the 13th Rule of Equity Practice, adopted about the time the Act of 1823 was passed — 2 Kelly, page 483 — which provides that when a case in equity shall be tried by a jury, who shall render a verdict for a specific sum, a decree shall be entered for such sum, and such execution shall be issued thereon, as if the cause had been tried at common law, and when the' finding of a jury is special, and requires the payment of money, and some duty to be performed, the sum so found may be recovered at common law, and such duty shall be enforced by the Court, by attachment for contempt, or otherwise, according to the course of proceedings in equity.

We think it, therefore, morally certain that this case does not come within either the letter or spirit of the Act against dormant judgments, and the reasoning of this Court in Butt vs. Maddox, 7 Georgia Reports, page 495, and in 18 Georgia Reports, pages 746, 749, fully sustains the foregoing positions, and the argument with reference to the foreclosure of mortgages applies equally to a decree in equity, which prescribes the performance of a duty, but creates no lien.

Nor do we see any error in the order of the Judge directing the decree to be carried out. The record shows (and by that we must be governed) that, in answer to the rule taken in July, 1857, but not heard till February, 1860, calling upon the plaintiff in error to show cause why the decree should not be executed, she showed no other cause, but that the decree was dormant, and this by way of oral demurrer to the rule. If the decision of the Judge went, beyond the issue made, and she is satisfied of the fact, the order can be limited or set aside, upon motion, as having been improvidently granted. No application has been made for this purpose. In the present state of ihe case, we cannot do otherwise than affirm generally the judgment of the Court below.

Let the judgment be affirmed.