Brooks v. Preston , 106 Md. 693 ( 1907 )

The facts in this case are as follows. On March 30th, 1892, a certain Henry J. Conway recovered judgment in the Baltimore City Court against Chauncey Brooks the appellant in this Court, for $208.13, with interest and costs. Conway died in 1894. On November 4th, 1905, letters of administration were granted to the appellee by the Orphans' Court of Baltimore City on the estate of Conway. On November 6th, 1905, the appellee by petition filed in the case in which judgment was recovered, suggested the death of Conway, and his appointment as administrator, and was substituted as plaintiff in the place of Conway.

On November 8th, 1905, the appellee caused the writ of scirefacias to revive said judgment to be issued out of said Court, which was made known to the appellant. To said writ the appellant pleaded, first, limitations, and second, payment. The appellee demurred to the plea of limitations and replied to the plea of payment, denying that the appellant had discharged the judgment by payment. Issue was joined on the demurrer and on the replication to the second plea.

The Court overruled the appellee's demurrer, with leave to reply, and he replied, (1), that the operation of the Statute of Limitations was suspended between the time of Conway's death and the granting of administration on his estate, and that consequently said judgment was not above twelve years, standing at the time of the suing out of said writ; (2) a new promise within three years before the suing out of said writ, and (3) that no judgment has been yet recovered in this action. The appellant demurred to this replication, but the Court overruled his demurrer, with leave to rejoin, and he rejoined to the appellee's replication that, (1) the operation of the statute was not suspended between the time of Conway's death and the granting of administration on his estate, (2) the appellant did not make the new promise alleged, and (3) the judgment referred to in his replication is the judgment upon which said writ issued. The appellee surrejoined to the appellant's first rejoinder, that the statute was suspended during said period, and joined issue on his second and third rejoinders. The appellant joined issue on the appellee's surrejoinder to the appellant's first rejoinder. The case was tried and resulted in a verdict and judgment for the appellee, from which this appeal was taken.

Four exceptions were taken during the trial by the appellant, three to the rulings of the Court on the evidence and the fourth to its rulings on the prayers and these are the questions presented by said exceptions, together with the Court's action on the demurrers, that are to be determined by this Court.

The first question to be determined is, when, from an examination of the record, the first error in pleading has occurred. We have seen that the plea of limitations was interposed by the appellant. To this the appellee demurred. What is the language of this plea? It is in these words: "For first plea, that the judgment in this action was recovered more than twelve years before the issuing of the sci. fa. thereon in this action." Is this a good plea? The Code, Art. 75, § 24, sub-section 50, gives this form: "That the alleged cause of action did not accrue within ____ years before this suit." We think this a substantial compliance with the law. If the judgment was recovered more than twelve years before the issuing of thesci. fa. necessarily the right of action in legal contemplation had accrued more than twelve years before the issuing of thesci. fa. and the statutory defense had been availed of which was open to the appellant. But the appellee contends that the use of the words "in this action" are irregular and meaningless, because this was a new action, and when the plea was filed no judgment had been obtained. Now a scire facias is a writ grounded on some record remaining in the Court from which it is issued, and although it is a judicial writ of execution, yet it so far partakes of the nature of an original writ, that the defendant is entitled to plead to it. Poe's Pl. Pr., 3 ed., sec. 585. JUDGE IRVING in Bish v. Williar, 59 Md. 384, uses this language: "A scire facias to revive a judgment is, as to the judgment debtor and his heirs or personal representatives, a continuation of a former proceeding."

A sci. fa. is usually deemed a judicial and not an original writ. 19 Ency. Pl. Pr., 262. With one or two exceptions * * * proceedings by sci. fa. are according to the weight of authority considered to be a continuation of former proceedings, and not an original action. 19 Ency. Pl. Pr., 263.

Although * * a writ of scire facias is a judicial process, yet it so far partakes of the nature of an original action that the defendant may appear and plead thereto, and is to that extent considered an action. 19 Ency. Pl. Pr., 264.

JUDGE BARTOL in Bridges v. Adams, 32 Md. 580, uses this language; "But a scire facias is not an original writ within the meaning of the Act of 1864, ch. 6, sec. 2." A writ of scirefacias as known to the common law is founded upon some matter of record, as for instance, judgments, recognizance, letters patent,c. Its object is either to obtain execution of the matter of record upon which it is based, or to vacate or set it aside.

The plea of limitation is not a plea to the merits, and being so regarded must be received with strictness; Nelson v. Bond, 1 Gill 221, yet it need not be set out in the words of the statute; a plain statement of such facts as may be necessary to form the defence being all that is required. Gott v. State,44 Md. 336.

The record shows that a judgment was recovered against the appellant on March 30th, 1892, and that a sci. fa. was issued in that case on November 8th, 1905. Now the limitation to judgments is twelve years and the appellant says that the judgment in this case was recovered more than twelve years before the issuing of the sci. fa. thereon in this action. Now if this is as we have shown the same action, and of its so being we can have no doubt, and the plea sets up the statutory bar to thesci. fa., what doubt can there exist as to what judgment the appellant was interposing his plea of limitation. There was no other judgment against this appellant at the suit of the appellee, and from the record we are driven to the conclusion that the plea is good, and that the learned Judge below was incorrect in his rulings.

But the appellee having obtained leave of the Court to reply, filed the following replication: "That more than eight years elapsed between the death of said Henry J. Conway and the appointment of an administrator of his estate, and that excluding said time between the death of said Henry J. Conway and the appointment of an administrator upon his estate, the original judgment, upon which the sci. fa. in this case was sued out, was not above twelve years, standing at the impetration of said writ." To this replication the appellant demurred but the learned Court overruled his demurrer and called upon him to plead. In this ruling we think the learned Judge erred.

This Court in Stewart v. Spedden, 5 Md. 448, through JUDGE TUCK uses this language touching a similar proposition: "If it was designed to raise the proposition, that the statute does not run while there are no letters of administration on a deceased's estate, without reference to the time of the accrual of the cause of action, it was clearly wrong, because the operation of the statute cannot be suspended by the death of a party, against whom it has started in his lifetime." In this case judgment was obtained March 30th, 1892, and Henry J. Conway died in 1894, andsci. fa. was not issued until November 8th, 1905. Mulliken v.Duvall, 7 G. J. 355; Fink v. Zepp, 76 Md. 185; Maurice v. Worden, 52 Md. 295.

By the appellee's second replication he alleges "That within three years before the suing out of the scire facias in this case, the defendant acknowledged the debt evidenced by the original judgment, upon which the said writ was issued, and promised to pay the same." Now was the alleged new promise sufficient to remove the bar of the statute and enable the appellee to maintain this form of action? In Mann v. McDonald,admr., 22 Wn. (D.C.), L.R. 98, which was an action to revive a judgment by sci. fa. and of debt on a judgment, CHIEF JUDGE ALVEY, after holding that our Statute of Limitations (Act 1715, ch. 23, Code P.G.L. 1904, Art. 57, § 3) was applicable to the District of Columbia, said: "Unlike the construction that has been placed upon the terms of the statute employed by the second section, in regard to simple contract debts, the construction uniformly placed on the terms employed in the sixth section in regard to judgments, recognizances and specialties of various kinds, owing to the peculiar nature of the language employed in the latter section, has been different and unyielding to circumstances that would remove the bar of the statute as applied to simple contract debts; hence it has been uniformly held that a new acknowledgment of the debt due on judgment or even an express promise to pay same, will not arrest the running of the statute, or remove the bar, as against the judgment or specialty mentioned in the Act." And this Court by JUDGE ALVEY declares that "Nothing less than an express promise to pay the amount due thereon, made after the statute has become a bar to the remedy on the bond itself will suffice to maintain an action of assumpsit to recover the amount due."

In such case the bond, although the remedy thereon be barred by the statute, may be given in evidence, as the inducement to, or explanatory of, and as furnishing the legal basis of the express promise to pay the amount remaining due on the bond." Leonard,admr., v. Hughlets, 41 Md. 380; St. Mark's Church v.Miller, 99 Md. 26.

It follows therefore from what we have said that the judgment in this case must be reversed.

Judgment reversed without a new trial. Appellee to pay thecosts above and below.