Mobile Drug Co. v. McCullough

Supreme Court of Alabama

Mobile Drug Co. v. McCullough

112 So. 238, 215 Ala. 682, 1927 Ala. LEXIS 639

CourtSupreme Court of Alabama

DecidedMarch 24, 1927

Docket5 Div. 972.

StatusPublished

Cited by6 cases

This text of 112 So. 238 (Mobile Drug Co. v. McCullough) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Mobile Drug Co. v. McCullough, 112 So. 238, 215 Ala. 682, 1927 Ala. LEXIS 639 (Ala. 1927).

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Opinion

THOMAS, J.

The order to revive the judgment did no more than reinvest the plaintiff with the right to have execution on that original judgment.

The statutes are that the assignee of a judgment or decree may by scire facias have the same revived in his name, as provided by statute (section 7870, Code); that there is presumption of satisfaction of said original judgment or decree after the lapse of 10 years “from the rendition of same without issue of execution,” etc. (section 7871, Code); that “no scire facias shall issue to revive a judgment or decree after the lapse of 20 years from its rendition” (section 7872, Code).

In Henry County Treas. v. State ex rel. Rambow, 16 Ala. App. 670, 81 So. 190, the presumption of payment after 20 years from rendition of judgment was held conclusive This is in line witfi. the ruling of the trial court, that the right of the revivor by scire facias, under section 7872 of the Code of 1923, was barred after 20 years from date of rendition. *683 That is to say, the time runs from said date rather than that from date of the subsequent revivor, etc. Marx v. Sanders, 98 Ala. 500, 11 So. 764; Field v. Sims, 96 Ala. 540, 11 So. 763; Draper, Matthis & Co. v. Nixon, 93 Ala. 436, 8 So. 489. That in said case the old judgment is simply called into action by a judgment on which the plaintiff can have execution. It is a mere continuation of the original suit. Baker, Fry & Co. v. Ingersoll, 37 Ala. 503; Marx v. Sanders, supra.

On November 24, 1896, the Drug Company recovered judgment against the appellees; re-vivor thereof by scire facias on November 30, 1915; and on Junei 29, 1926, the plaintiff in judgment filed a motion in the circuit court for second revivor and execution on the original judgment. The demurrers of the appel-lees presented the point that, under section 7872 of the Code, no' scire facias shall issue to revive judgment after 20 years from the date of its original rendition, and the court sustained the demurrer. That judgment was pursuant to the statute and is affirmed.

Affirmed.

ANDERSON, C. J., and SOMERVILLE and BROWN, JJ., concur.

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THOMAS, J.

The order to revive the judgment did no more than reinvest the plaintiff with the right to have execution on that original judgment.

The statutes are that the assignee of a judgment or decree may by scire facias have the same revived in his name, as provided by statute (section 7870, Code); that there is presumption of satisfaction of said original judgment or decree after the lapse of 10 years “from the rendition of same without issue of execution,” etc. (section 7871, Code); that “no scire facias shall issue to revive a judgment or decree after the lapse of 20 years from its rendition” (section 7872, Code).

In Henry County Treas. v. State ex rel. Rambow, 16 Ala. App. 670, 81 So. 190, the presumption of payment after 20 years from rendition of judgment was held conclusive This is in line witfi. the ruling of the trial court, that the right of the revivor by scire facias, under section 7872 of the Code of 1923, was barred after 20 years from date of rendition. *683 That is to say, the time runs from said date rather than that from date of the subsequent revivor, etc. Marx v. Sanders, 98 Ala. 500, 11 So. 764; Field v. Sims, 96 Ala. 540, 11 So. 763; Draper, Matthis & Co. v. Nixon, 93 Ala. 436, 8 So. 489. That in said case the old judgment is simply called into action by a judgment on which the plaintiff can have execution. It is a mere continuation of the original suit. Baker, Fry & Co. v. Ingersoll, 37 Ala. 503; Marx v. Sanders, supra.

On November 24, 1896, the Drug Company recovered judgment against the appellees; re-vivor thereof by scire facias on November 30, 1915; and on Junei 29, 1926, the plaintiff in judgment filed a motion in the circuit court for second revivor and execution on the original judgment. The demurrers of the appel-lees presented the point that, under section 7872 of the Code, no' scire facias shall issue to revive judgment after 20 years from the date of its original rendition, and the court sustained the demurrer. That judgment was pursuant to the statute and is affirmed.

Affirmed.

ANDERSON, C. J., and SOMERVILLE and BROWN, JJ., concur.

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112 So. 238, 215 Ala. 682, 1927 Ala. LEXIS 639, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mobile-drug-co-v-mccullough-ala-1927.

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