Green v. Mann

19 App. D.C. 243, 1902 U.S. App. LEXIS 5383

Opinion

Mr. Chief Justice An vet

delivered the opinion of the Court:

The question presented by this appeal is one of practice, and is of practical importance asi to the effect to be given to judgments of justices of the peace of this District, when filed in the clerk’s office of the Supreme Court of the District for the purpose of creating a lien upon the real estate of the debtor, and authorizing execution thereon. The question arises upon the construction of section 1022 of the Devised Statutes of the United States relating to the District of Columbia. That section is as follows:

“After judgment for a debt amounting, with interest, to $20, exclusive of costs, before a justice of the peace, the judgment creditor may, when execution is returned ‘ no personal property found whereon to levy,’ file in the clerk’s office of the Supreme Court of the District a certified copy of such judgment, which shall be docketed in the docket of law causes in said office in the same manner as appeals from justices are docketed there; and when so docketed the force and effect of the judgment shall be the same, as to lien a/nd execution, as if it had been a judgment of the Supreme Court.”

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The proceeding begun in the court below was the issuance of a writ of scire facias, wherein is recited a judgment of a justice of the peace recovered by the plaintiff, on the 18th day of May, 1895, against the defendant, for $102.83, debt, with interest thereon from the 27th day of December, 1892, and $6.20' costs. The writ of scire facias also recites that a certified copy of said judgment was filed in the clerk’s office of the Supreme Court of said District for purposes of lien and execution, as provided by section 1022 of the Devised Statutes of the United States relating to the District of Columbia, on the 17th day of June, 1895. And further, that a writ of execution had been issued on said judgment, as required by the statute, and returned by the proper officer nulla bona; “ and the plaintiff says that the said judgment is still altogether unsatisfied and remains in full force; wherefore the said plaintiff hath besought that a proper remedy be granted him in this behalf; therefore,” etc. The writ of scire facias was issued on the 27th day of March, 1901, and returned scire feci.

The defendant appeared and demurred to the writ, as being bad in substance; and assigned as cause of error that the record on which the writ issued was not in the Supreme Court of the District, but remained before the justice of the peace by whom the judgment was rendered.

The question thus presented is, whether there is power and jurisdiction in the Supreme Court of the District of Columbia to issue a scire facias and revive the judgment of a justice of the peace that has been filed and regularly docketed, under the provision of the statute to which we have referred ?

It is contended by the defendant in the judgment that no scire facias post annum et diem could issue out of the Supreme Court of the District to revive a judgment rendered by a justice of thepeace; butthat the scire facias should be issued by the same or another justice of the peace, and a transcript of the judgment so revived be thereupon filed and docketed, as in the first instance; and so upon each and every subsequent revival of the judgment: That the original judgment-remains in the keeping of the justice of the peace who rendered it, and that nothing but a mere transcript or copy thereof was filed to be docketed; and that, while the Supreme Court, by the terms of the statute, was authorized to issue an execution upon the judgment so entered upon its docket, yet it had no such power or jurisdiction over the record of the original judgment as would authorize it to revive the judgment by scire facias, that being ultra the power conferred by the statute. But this contention we do not think tenable.

It is very true, that, as a general principle, a scire facias to revivo a judgment, being founded, upon matter of record, can only issue from tbe court where tbe record is. It is strictly a judicial writ, issued in a proceeding to execution. But it was certainly competent for Congress, by tbe statute under consideration, to give force and effect to tbe transcript and tbe registry thereof upon tbe docket of tbe court, as if it were in fact and reality a judgment of record in tbe Supreme Court of tbe District. And this is what .we think was in effect done. Tbe judgment of tbe justice of tbe peace was made as and placed upon tbe footing of a judgment of tbe Supreme Court, upon tbe filing and docketing tbe transcript as directed by tbe statute. This has been tbe construction of a similar provision in tbe statutes of several States, in regard to tbe filing and docketing of transcripts of judgments of justices of tbe peace in courts of record. After they were thus filed and docketed they were treated and proceeded on as were other judgments of record in tbe courts. Jackson v. Jones, 9 Cow. 182, 191; Jackson v. Tuttle, 9 Cow. 233, 238; Brannan v. Kelley, 8 Sergt. & R. 479, 480; 3 Watts, 381-383; 3 Penn. Rep. 98.

But it is insisted that, by tbe terms of tbe statute, tbe transcript of tbe judgment when filed and docketed was only intended to have a limited effect,— that of creating a lien, and giving tbe right of execution to effectuate tbe lien. These were doubtless tbe leading objects to be attained; but tbe means to tbe end to be accomplished were not intended to be excluded. Tbe same ground for tbe restricted construction existed in tbe cases to which we have referred, and was urged, but it did not prevail. Tbe transcripts filed and docketed were treated as judgments of record in tbe courts upon whose dockets they were placed, and this by virtue of language very similar to that employed in tbe statute before us.

Tbe term “ execution,” as employed in tbe statute, is not to be construed in tbe restricted sense of process simply to collect tbe amount due on tbe judgment by levy and sale. It embraces all tbe appropriate means to execution of tbe judgment. In this sense a scire facias is a proceeding to execu tion. In Littleton’s Tenures, See. 505, it is said, “ If after the year and a day the plaintiff will sue out a scire facias to know if the defendant can say anything why the plaintiff should not have execution, a plea of release of all executions is a good bar of the writ, and this because the writ of scire facias is a writ of execution, and is to have execution, etc.” And Coke, in his Commentaries upon this section of Little-ton (2 Co. Litt. 291), says that “ a release of all executions is a good barre in a scire facias " And in 2 Tidd’s Practice, 1090, in treating of the scire facias, its foundation and office, says it is to make executionable a judgment, and “ that it is properly called a writ of execution.”

Put apart from these definitions, there are certain reasons for requiring the scire facias to revive a judgment, which creates a lien upon the real estate of the defendant, to issue out of a court of record of common-law jurisdiction, in order that parties interested in the land of the defendant may be made parties to the proceeding, with right to defend their interest against the enforcement of the judgment; and this we must suppose to have been within the contemplation of the statute, as the exercise of such jurisdiction would be quite incongruous with that conferred upon a justice of the peace. As said by Mr. Justice Gibson (afterwards Chief Justice), in the case of Brannan v. Kelley, already referred to, “ as the scire facias to have execution of the land is a judicial writ, being a part of the proceeding to execution, it is difficult to see any reason why the justice should have jurisdiction of it. There may be terre-tenants, not parties to the original suit, who are concerned only in respect of the land, and against whom the judgment is de terris. These may come in, and raise questions of difficult solution, which could never have been intended to be submitted to his decision; and it would, beside, seem an incongruity for a justice to decide on the propriety of the Common Pleas (here the Supreme Court) awarding execution. How could his decision be signified so that the court might be judicially informed of it and obey it ? It is said that a transcript of his judgment on the scire facias also should be filed. But that would supersede the old transcript; and, in strictness, seem to break the continuity of the lien, as there would be no apparent connection on the record between the old and new transcript to lead a purchaser to suppose that the lien of the latter extended further back than the date of the entry.”

We are of opinion that the demurrer to the scire facias, interposed by the defendant thereto, was properly overruled; and that the judgment of the court below should be affirmed; and it is so ordered. Judgment affirmed.

See sections 6, 213 and 214 of the Code, District of Columbia, in effect January 1, 1902.— Reporter.