OWENS
v.
HENRY
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A judgment creditor in Pennsylvania obtained a writ of scire facias in 1871 to revive an original judgment from 1861, then brought suit in Louisiana in 1880 to enforce it. The Supreme Court held that while the scire facias proceeding was valid in Pennsylvania, it could not overcome Louisiana's ten-year prescription period for judgments, and the suit was barred because it was commenced more than ten years after the original judgment's rendition and the scire facias could not remove the statutory bar of Louisiana law where the defendant had not been served with process.
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Mr. Chief Justice Fuller,
after stating the case, delivered the opinion of the court.
Judgments for money, whether rendered within or without the State, are barred by prescription in the State of Louisiana in ten years from the date of the rendition thereof. La. Civ. Code, Art. 3547. The original judgment was recovered June 17, 1861, and this action' was commenced November 1, 1880. Considered as brought upon that judgment the action was barred, but inasmuch as the original petition set up the judgment on scire facias, rendered May 10, 1871, in respect .of which ten years had not run, defendant compelled plaintiff to make his election as to which judgment he relied on, and he elected to stand on the judgment of May 10; 1871. The plea of prescription as to the original judgment therefore became unnecessary.
Ordinarily the writ of scire facias to revive a judgment is a judicial writ to continue the effect of, and have execution of, the former judgment, although in all cases it is in the nature of an action, as defendant may plead any matter in bar of execution, as for instance,, a denial of the existence of the record or a subsequent satisfaction or discharge. Foster on Scire Facias, 13, and cases cited; Tidd’s Practice, 1090; 2 Sellon’s Practice, 275.
Conformably to the exigency of the writ, the judgment on sci. fa., the-proceeding being regarded as a continuation of the original action, usually is that plaintiff have execution of the judgment mentioned in the writ with costs. Lilly’s Entries, 398, 638; Chitty’s Forms, 9th ed., 635; Black, Judgments, § 498. But in Pennsylvania it is held that a scire facias is in such wise a substitute in that State for an action of debt elsewhere, that the judgment should be quod recuperet instead of a bare award of execution; and hence, that a judgment on scire facias cannot be avoided because the original judgment might have been. Duff v. Wynkoop, 74 Penn. St. 300 ; Buehler v. Buffington, 43 Penn. St. 278 ; Conyngham v. Walter, 95 Penn. St. 85. Accordingly the judgment of May 10, 1871, was a judgment for the recovery of the amount of the judgment of 1866, with interest added thereon to date, and the judgment of 1866 was a similar judgment on the original judgment of June 17, 1861.
Viewed as a new judgment rendered as in an, action of debt, it had no binding force in Louisiana, as Henry had not been served with process or voluntarily appeared. And considered as in continuation of the prior action and a revival of the original judgment for purposes of execution, on two returns of nihil, it operated merely to keep in force the local lien, and could not be availed of as removing the statutory bar of the lex fori, for the same reason. Thompson v. Whitman, 18 Wall. 457; Pennoyer v. Neff, 95 U. S. 714; Grover & Baker Sewing Machine Co. v. Radcliffe, 137 U. S. 287; Steel v. Smith, 7 Watts & Searg. 447; Evans v. Reed, 2 Mich. N. P. 212 ; Hepler v. Davis, 32 Nebraska, 556.
The Circuit Court was right, and its judgment is
Affirmed.
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McCallum v. Gornto, 127 Fla. 792 (Fla. 1937)…usual form of the judgment in [*797] such proceeding is that the plaintiff have execution for the judgment or other record mentioned in the scire facias and for costs.” This enunciation is supported by the opinions and judgments in Owens v. Henry, 161 U. S. 642, 40 L. Ed. 837; Eau Claire Bank v. Reed, 232 Ill. 238, 83 N. E. 820, 122 A. S. R. 66 and notes. So the judgment should be affirmed and it is so ordered. Affirmed. Ellis, C. J., and Whitfield and Terrell, J. J., concur. Brown and Davis, J. J., con…
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Markham v. Sanford Gottsegen, 179 So. 2d 100 (Fla. 2d DCA 1965)…nvalid and the statutory bar of the lex fori would not be removed where the defendant had not been served with process, had not voluntarily appeared, and had previously removed from the state where the proceedings were had. Owens v. McCloskey, 1896, 161 U.S. 642, 16 S.Ct. 693, 40 L.Ed. 837; Betts v. Johnson, 1896, 68 Vt. 549, 35 A. 489; Dunn v. Dilks, 1903, 31 Ind.App. 673, 68 N.E. 1035; Hepler v. Davis, 1891, 32 Neb. 556, 49 N.W. 458, 13 L.R.A. 565, 29 Am.St.Rep. 457; Rice, Brown & Co. v. Moore, 1892, 48 K…
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Union Nat'l Bank v. Lamb, 337 U.S. 38 (U.S. 1949)…nevitably inject into the case an issue which in fact they put aside as irrelevant: the effectiveness of personal service upon defendant in Missouri to' obtain jurisdiction in- Colorado to' supplant the old judgment by a new One. See Owens v. Henry, 161 U. S. 642. “. . . from and after twenty years from the entry of final judgment in any court of this-state, the same shall be considered as' satisfied in fuli, unless revived as provided by law.” - 3 Colo. Stat. Ann. 1935, c. 93','§ 2.…1 / 2
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Pennoyer v. Neff, 95 U.S. 714 (U.S. 1877)
- Thompson v. Whitman, 18 Wall. 457 (U.S. 1873)
- Grover & Baker Sewing Mach. Co. v. Radcliffe, 137 U.S. 287 (U.S. 1890)