Humiston v. Smith

21 Cal. 129

• Court: California Supreme Court
• Decided: July 1, 1862
• Status: Published

Opinion

Cope, J. delivered the opinion of the Court

Field, C. J. and Norton, J. concurring.

This is an appeal from an order quashing a writ of scire facias issued by the District Court for Alameda County, to revive a judgment. The writ recites that the judgment is unsatisfied, and requires the defendants to appear and show cause why the plaintiff should not have execution, etc. The relief sought by the writ is amply provided for by the Practice Act, and the remedy invoked is inconsistent with the provisions of that act. The act expressly declares that “ There shall be in this State but one form of civil action for the enforcement or protection of private rights, and the redress or prevention of private wrongs;” and the terms “ civil action ” include the remedies provided for the enforcement of judgments. The intention was to adopt a uniform and complete system, and it is impossible to give effect to that intention if parties are at liberty to disregard the course of proceeding pointed out. The system, if it be a system at all, is necessarily exclusive, and the introduction of other remedies would destroy its uniformity and defeat the purposes of the act. There is some discussion in the briefs as to''whether the remedy by scire facias is a part of the common law as adopted in this country, but in the view taken this question is immaterial. It is a remedy unknown to our practice, or if known is not applicable in a case of this character where appropriate remedies are expressly provided. The Courts of blew York have frequently determined that the code of that State, the provisions of which are similar to those of our Practice Act, abolished and superseded the writ of scire facias. The subject was fully considered in Cameron v. Young (6 How. Pr. 372) and Alden v. Clark, (11 Id. 209) and an examination of these cases will show that they are directly in point upon the question before us.

The order is affirmed.