Fagan v. Bently , 32 Ga. 534 ( 1861 )

By the Court.

Lyon, J.,

delivering the opinion.

When this cause was heard before us, in term, it was insisted in the argument that the Court below, on the trial of the case,'rejected the exemplification of the record of the judgment from Alabama, the subject matter of the suit, as evidence, and it is stated in the bill of exceptions that the Court so decided. We ruled then that that decision was erroneous, but on looking since to the certificate of the presiding Judge,. I find it there stated that the record was not rejected, but admitted as evidence. In making the decision we were misled by the statement in the bill of exceptions, the place where we must look to find what was decided on the trial, our attention not having been called to the certificate. The certificate states that the exemplification was admitted, and the case non-suited, on the ground that the suit was bound by the Statute of Limitation.

The only question, therefore, necessary for us to consider is, was the judgment from the State of Alabama the foundation of the suit barred by the Statute of Limitations of the State of Georgia. We hold that it was not. The statute limiting suits or judgments from Courts other than the Courts of this State, is as follows: “All suits upon judgments obtained out of this State shall be brought within five years after such judgment shall have been obtained, and not after.” Act of 6th March, 1856, Pam. Acts, page 234, is a substantial re-enactment of the Act of 7th December, 1805. “And the said actions of debt upon judgments, obtained in Courts other than the Courts of this State, within five years next after the judgment shall have been obtained, and not after.”

The judgment on which this suit is brought is the revived judgment obtained at the Spring Term of the Circuit Court of Tallapoosa county for the year 1859, and not the old judgment obtained at the Spring Term of that Court, 1839, and therefore the right of the plaintiff to bring suit on that judgment is not barred • it is not within the terms of the act of limitation.

If the judgment, as originally obtained in 1839, had not been revived, and the suit had been for a recovery on such judgment, the Statute of Limitations would have barred that right, but being revived according to the statutory provisions of that State, the judgment of 1859 is the judgment now of force, and not that of 1839, and to it the statute is no reply, as five years had not elapsed from the time that judgment was obtained until this suit was brought.

But it is insisted that as the defendant did not reside in the State of Alabama ,at the time the judgment was revived in 1859, but in the State of Georgia, as the record shows, that Court had no jurisdiction over the defend-

ant, and the judgment of revival was void as to him. As to the effect of the judgment of revival upon the defendant, we will not now undertake to say—it is not necessary that we should. What we do decide is, that the Statute of Limitation is not a reply. The Court had the power, as all Courts of general jurisdiction have, to revive its judgment under such rules and regulations as may be prescribed by law, and this judgment has been revived in strict conformity to the statutory provisions of the State of Alabama. See statutes of that State on this subject in Reporter’s statement of facts, that were in evidence in the trial of the case in the Court below. Whether the defendant is concluded by this judgment of revival, from setting up any meritorious defense that he may have had, then arising since the original judgment was obtained in 1839, and before the judgment of revival in 1859, such as payment, release, etc., we do not say, as no such questions have been made or discussed, but we are inclined to think he would not be, if he failed to receive actual notice of the pendency of the proceedings to revive the judgment.

Let the judgment be reversed.