Owens v. McCloskey/Opinion of the Court

by Melville Fuller

United States Supreme Court

161 U.S. 642

Owens  v.  McCloskey

Judgments for money, whether rendered within or without the state, are barred by prescription in the state of Louisiana in 10 years from the date of the rendition thereof. Rev. Civ. Code La. 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 10 years had not run, defendant comelled 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. Fost. Scire Facias, 13, and cases cited; Tidd, Prac. 1090; 2 Sell. Prac. 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. Lil. Ent. 398, 638; Chit. Froms (9th Ed.) 635; Black, Judgm. § 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 Pa. St. 300; Buehler v. Buffington, 43 Pa. St. 278; Conyngham Tp. v. Walter, 95 Pa. 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 jud ment 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; Machine Co. v. Radcliffe, 137 U.S. 287, 11 Sup. Ct. 92; Steel v. Smith, 7 Watts & S. 447; Evans v. Reed, 2 Mich. N. P. 212; Hepler v. Davis, 32 Neb. 556, 49 N. W. 458.

The circuit court was right, and its judgment is affirmed.

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