Dutton v. Parish

34 App. D.C. 393, 1910 U.S. App. LEXIS 5818

• Court: Court of Appeals for the D.C. Circuit
• Decided: February 1, 1910
• Docket: No. 2090
• Status: Published

Opinion

Mr. Justice Robb

delivered the opinion of the Court:

Scire facias to revive a former judgment, under the doctrine prevailing in Maryland from an early day, is a judicial Avrit, and is converted into an action only by appearance and plea thereto by the defendant. Collins v. McBlair, 29 App. D. C. 354; Weaver v. Boggs, 38 Md. 255. Unless it is thus converted into an action, its character is unchanged, and its life ends in a year and a day from its issuance. Collins v. McBlair, supra. It is apparent, beyond the point of controversy, that when said order of summons of June 11th, 1909, was issued, the action in respect to which it was issued had spent its force and no longer possessed a spark of vitality. The original judgment of April 4th, 1889, became extinct at the expiration of twelve years unless revived by scire facias within that time. Upon the facts stated the scire facias issued on October 1st, 1892, to revive said judgment, was a judicial writ, and, upon failure to enter a fiat thereon within a year and a day from its issuance, it operated as a discontinuance of the proceeding, and, even had fiat been entered, the twelve years gained would have terminated in 1904. When the order of summons was issued, therefore, there was no cause pending. The court possessed no power of revivor, and hence was without jurisdiction in the premises.

The real questions raised by the assignments of error goes to the authority of the court, at its October term, in vacating said order of its April term, the contention being that the court “had lost jurisdiction to vacate said order before the motion attacking it was filed.”

It goes without- saying that, generally speaking, a court loses control of a judgment after the expiration of the term in which it is rendered; but the order here involved was not a judgment, and its function was not to terminate the proceeding in which it was entered. It was merely an interlocutory order, over which the court had full control when the motion to quash was made. Upon the filing of that motion, no issue having been raised as to the facts therein stated, it appeared that, when said order of summons was made, the action to which it referred had long since terminated, and consequently that said order was void. In such a situation it became the duty of the court to terminate an idle proceeding by quashing its prior order. Such was the proper method of procedure. Hopp v. Pickford, 30 App. D. C. 81. Even had this been a void judgment instead of an interlocutory order, the court would have possessed the power to set it aside. Harris v. Hardeman 14 How. 334, 14 L. ed. 444.

Einding no error in the record the judgment is affirmed, with costs.