Seibels v. Hodges

Crawford, Justice.

A scire facias to revive a dormant judgment was sued •out by the plaintiff in fi. fa. against S. R. Hodges, the defendant, who appeared and resisted the proceeding by a demurrer thereto because—

1. The scire facias had been issued without an order of •court authorizing the same.

2. That more than ten years had elapsed from the time of the judgment to the filing of the petition for scire facias. .

3. That more than ten years had elapsed from the date of the judgment to the service of the scire faciasoxx the defendant.

Upon the filing of this demurrer and the facts appearing to be true—the plaintiff appended his petition by adding thereto the entry of a levy which appeared on the back of the execution and which bore date January 20th, •1869. Thereupon the defendant made answer further "resisting plaintiff’s right to revive, upon' the ground that the original judgment was rendered by the judge upon an appeal without the verdict of a jury and therefore null and void.

After argument had the" demurrer was sustained and the scire facias dismissed, to which judgment on the demurrer, and the dismissal of the suit, the plaintiff excepts.

1. No order of court is necessary to authorize the issuance of a scire facias to revive a dormant judgment. See 52, Ga., 92 ; Code, §3607.

2. 'Where ten years have elapsed from the date of the judgment and no fi. fa. has issued, or if issued no levy has been made, and no steps taken as provided by law to revive the same, it is barred. .

3. Where a demurrer is filed to pleadings the court looks alone to the law arising thereon, and pronounces its judgment without considering any other matter or thing appearing aliunde. It does not appear to us therefore, that after the order of the court allowing the amendment to the plaintiff’s petition of the sheriff’s entry 01; the fi. fa. that t'he right of the petitioner was barred, and the law as tested by the demurrer was with the plaintiff, and so should have been the ruling.

4. Where it appears upon the face of the papers presented to the court in a proceeding by scire facias to revive a judgment, that the original judgment was rendered in an appeal cause by the court without the verdict of a jury, it is not error to dismiss the same upon the ground that it was illegal and void, and therefore could not be revived. The record shows that this case was dismissed upon that ground and therefore the judgment is affirmed.