James H. Hill & Co. v. Neal

Supreme Court of Georgia

James H. Hill & Co. v. Neal

52 Ga. 92

DecidedJanuary 15, 1874

StatusPublished

This text of 52 Ga. 92 (James H. Hill & Co. v. Neal) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

James H. Hill & Co. v. Neal, 52 Ga. 92 (Ga. 1874).

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Opinion

McCay, Judge.

1. It is plainly implied from section 3607 of the Code, that a sci. fa. to revive a dormant judgment may issue in vacation. There is no hint in the section of any application to the court. The writ is to be signed by the clerk; he [93]*93is to make copies of it, and undoubtedly the uniform practice in this state lias been for the clerk to issue the writ in vacation on simple application of the parly seeking it, or his attorney. And this was and is the English practice. In Petersdorff’s Abridgement, title Sci. Fa., and note to the title, it is said, in terms, that the writ issues in vacation. In Tidd’s Practice, 2 vol., 1122, it is said that the writ is made out by the plaintiff’s attorney and signed by the signer of the writs. In Foster on Sci. Fa., 73, Law Library, (Johnson’s) it is said the writ is the declaration; that they are .synonymous. . In fact, the sci. fa. consists mainly in a recital of what appears of record in the keeping of the clerk; any additional fact recited therein is stated to be at the suggestion of the party suing out the writ: Foster on Sci. Fa., (2.) At common law all suits, and this is in the nature of a suit, were commenced by suing out the writ, and this was always in vacation, and on the mere application of the plaintiff. The declaration was not filed until the defendant appeared. It is clear, therefore, to us that the practice uniformly pursued here in cases of sci. fas., is as nearly in accord with the practice in England as the nature of our courts and officers will permit, and that a sci. fa. may issue in vacation by the clerk on the mere parol application of the party seeking it, and that it is proper for the clerk to make such recitals' in it as the party shall suggest.

2. If there is an entry of a levy on the fi fa. and the judgment be in fact .dormant, the levy is simply void; it is no levy, and the plaintiff, by suing out his writ, abandons it.

Judgment affirmed.

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McCay, Judge.

1. It is plainly implied from section 3607 of the Code, that a sci. fa. to revive a dormant judgment may issue in vacation. There is no hint in the section of any application to the court. The writ is to be signed by the clerk; he [93]*93is to make copies of it, and undoubtedly the uniform practice in this state lias been for the clerk to issue the writ in vacation on simple application of the parly seeking it, or his attorney. And this was and is the English practice. In Petersdorff’s Abridgement, title Sci. Fa., and note to the title, it is said, in terms, that the writ issues in vacation. In Tidd’s Practice, 2 vol., 1122, it is said that the writ is made out by the plaintiff’s attorney and signed by the signer of the writs. In Foster on Sci. Fa., 73, Law Library, (Johnson’s) it is said the writ is the declaration; that they are .synonymous. . In fact, the sci. fa. consists mainly in a recital of what appears of record in the keeping of the clerk; any additional fact recited therein is stated to be at the suggestion of the party suing out the writ: Foster on Sci. Fa., (2.) At common law all suits, and this is in the nature of a suit, were commenced by suing out the writ, and this was always in vacation, and on the mere application of the plaintiff. The declaration was not filed until the defendant appeared. It is clear, therefore, to us that the practice uniformly pursued here in cases of sci. fas., is as nearly in accord with the practice in England as the nature of our courts and officers will permit, and that a sci. fa. may issue in vacation by the clerk on the mere parol application of the party seeking it, and that it is proper for the clerk to make such recitals' in it as the party shall suggest.

2. If there is an entry of a levy on the fi fa. and the judgment be in fact .dormant, the levy is simply void; it is no levy, and the plaintiff, by suing out his writ, abandons it.

Judgment affirmed.

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Bluebook (online)

52 Ga. 92, Counsel Stack Legal Research, https://law.counselstack.com/opinion/james-h-hill-co-v-neal-ga-1874.