Shipley v. Pew

23 W. Va. 487, 1884 W. Va. LEXIS 11

Opinion

Woods, Judge :

The answer of the defendant Hays presents two grounds of defence against the demands of the plaintiff, either of which if established is a complete defence.

The first is, that the plaintiff’s judgment has been fully-paid, and the second is, that the judgment at the time the plaintift instituted his suit, was barred by the statute of limitations. Both of these allegations in the defendants’ answer are denied by the general replication thereto, and the burden of proving these grounds of defence rests upon the defendants.

The only7 proof of payments, in the cause, were the returns made by7 the sheriff of Gilmer county on executions issued upon the judgment before the date of that execution, which was returnable to the first Monday7 in January7,1859, and the commissioner reported, that on September 11, 1877, there was a balance of principal and interest of five hundred and-ninety-one dollars and seven cents remaining unpaid upon the plaintiff’s judgment.

The only question remaining to be considered is, whether on September 16, 1874, Avhen the plaintiff’s suit was instituted the lien of his judgment had ceased to exist? The judg ment was recovered on May 8, 1855, and was therefore subject to the provisions of the 12th and 13th sections of chapter 186 of the Code of Virginia. The last execution issued thereon was a fieri facias dated [November 26, 1858, and returnable to the first Monday in January, 1859, which could not have been later than January 7,1859. This execution was placed in the sheriff’s hands on [November 27,1858, to be executed, but no return was ever made or endorsed thereon by the sheriff.

By the 12th section of chapter 186 of the Code of Virginia, it is provided, that “on a judgment execution may issue within "a year, and a scire facias or action may be brought within ten years after the date of the judgment; and where execution issues within the year, other executions may be issued, or a scire facias or action may be brought within ten years from the return day of an execution on which there is no return by an officer, or within twenty years from the return day of an execution on which there is such return,” and by section 13 of said chapter it is expressly declared that “no execution shall issue, nor any scire facias or action be brought on any judgment in this State other than for the commonwealth, after the time prescribed by the preceding section” (12) except in certain excepted cases, none of which exist in the case under consideration. (Under the said provisions of law then in force, the plaintiff’s said judgment would not have been barred until the expiration of twenty years from the return day of said venditioni exponas, that is until the same day in July 1876.) But the Code of West Virginia which went into operation on April 1, 1869, repealed said sections 12 and 13 of chapter 186 of the Code of Virginia, and enacted in lieu thereof, sections 11 and 12 of chapter 139. By said eleventh section it is provided that executions may be issued within two years after the date of the judgment; and that where execution issues within two years aforesaid other executions may bo issued on said judgment; without notice within ten years, from the return day of the last execution issued thereon on which there is no return by an officer, or lohich has been returned unsatisfied.”

By section 12 of said chapter 139 Code of West Virginia it is declared that “ no execution shall issue, nor any scire facias or action be brought on a judgment in this State, other than for the State, after the time prescribed by the preceding section (eleven), except that in computing the time, the period mentioned in section 4 oí chapter 136, and any time during which the right to sue out execution on the judgment is suspended by the terms thereof or by legal process, shall be omitted; and sections 16, 17, 18 and 19 of chapter 104 shall apply to the right to bring such action or scire facias in like manner, as to any right, action or scire facias mentioned in these sections.” By said section 4 of chapter 136 the period from the 17th of April, 1861, to the 1st of March, 1865, is excluded from said computation of time. By section 18 of chapter 104 of tli£ Code as amended by the act of the Legislature passed the 7th of April, 1873, there is also to be excluded from such computation, any period of time during which the plaintiff may have been ■ “ obstracted in the prosecution of his right by war, insurrection or rebellion.” Acts 1872-1873, p. 286.

When the Code of West Virginia went into effect, ten years from the return day of the fieri facias, which was returnable to the January rules, 1859, which was then the last one issued upon judgment, on which there was no return by an officer, had already expired; but by the saving clause of the said section 12, excluding from the computation of time the said period between the 17th April, 1861, and the 1st of March, 1865, the time within which an execution might issue upon said judgment was extended for the further, period of three years, ten months and fourteen days, so that unless the plaintiff could show himself entitled to exclude from such computation of time, some additional time, all the plaintiff’s remedies to enforce his said judgment would be barred' after the 15th day of February, 1873.

But the plaintiff by his bill, as amended by his special replication and “rebutter,” claims that his suit which was commenced on the 16th of September, 1874, was not barred because he was entitled to exclude from such computation the whole period of the civil Avar which he insists commenced on the 27th April, 1861, the date of the President’s proclamation of blockade, and ended the 2d day of April, 1866, when, by the President’s proclamation peace was restored, and by excluding all this period, which ivas four years, eleven months and five days, the said period of ten years from the 7th of January, 1859, would not expire until the 12th day of December, 1874. Admitting for the sake of the argument only, that the plaintiff ivas entitled to exclude all of the said period,his conclusion is nevertheless erroneous, for even in that case, the ten years would expire on the 12th December, 1873, and not 1874. But the period excluded by the said section 12 of chapter 139, begins on the 17th of April, instead of the 27th of April, 1861, and therefore the said period of ten years, according to the pretensions of the 'plaintiff, would be extended for the further period of ten days, and the ten years would expire, on the 22d of December, 1873. It is alleged by the plaintiff' in his bill as amended, that because he resided in the State of Maryland during the war, and sympathized with the rebellion it was unsafe for him to appear in West Virginia to collect his debt; and because he could not have the benefit of the services of his retained counsel who was excluded from practicing his profession by the lawyers’ test oath, he was further obstructed in the prosecution of his right to enforce the collection of said judgment, blow it does not follow that because a plaintiff cannot have the services of a. particular counsellor or attorney, that he was for that cause obstructed in the prosecution of his right, for he was still at liberty to employ other counsel, equally efficient, and if such could not be found, he ivas in as good condition in that respect, as any resident citizen of the State. If however the plaintiff had in any manner participated or aided 'the cause of the “Confederates” in the late civil war and for that cause had been, or might have been precluded from prosecuting any suit in this State by reason of the suitor’s test oath, he could, by simply allegingin his bill, and verifying the same by his own affidavit, or by his affidavit filed in the cause stating that he “could not truly make the affidavit prescribed by section 27 of chapter 106 of the Code of West Virginia,” have excluded from the computation of time within which he might have enforced his said judgment, the period from the 28th day of February, 1865, to the 6th day of February, 1873. This he has not attempted to do, nor has he offered either his own affidavit, nor any other evidence in support of any such pretensions. It was a matter oí vital importance to allege this fact, if it existed; it is not alleged, and it must he presumed it does not exist. It is further insisted in argument by th,<3 appellant’s counsel, that the period during which the stay law was in force, and during which suits properly cognizable in the county of Gilmer were allowed by statute to he prosecuted in the county of Dod-dridge, should also he excluded from such computation of time. It might he a sufficient answer to this argument to say, that no such allegations appear in the pleadings. But, when we remember that the first stay law was passed on the 26th of July 1861, and the last expired by its own limitation on February 1, 1868, and the whole period of its existence was only eighteen months and five days; and that the time during which suits cognizable in Gilmer county could he brought in Doddridge county, commenced on October 15, 1863, and ended on February 13, 1866, and therefore only embraced a period of two years three months and twenty-eight days; and as both of these periods are embraced in the period from April 17, 1861, to April 2, 1866, it becomes evident that the plaintiff was not in. any manner obstructed in the prosecution of- his right to enforce his judgment either by the existence of said stay law or by' the law authorizing certain suits which were properly cognizable in Gilmer county to be brought in the county of Doddridge. But the statute authorizing such suits to be so brought provided, that “nothing therein contained should be construed to affect any provision of law for the limitation of actions or suits.” Acts 1863 cli. 70, Acts 1866 eh. 25, Acts Reorg. Gov't Va. 1861, p. 18, p. 39; same, extra session 1862, pi 8.' Feither can the plaintiff derive any benefit from the decree confessed by the defendant Pew in favor of the plaintiff on July 19, 1859, for on November 17, 1877, the suit in which the same was confessed, was, by the decree of said court “for reasons appearing to the court dismissed.” Now ■ if this decree is not to be taken and held as a complete bar to any further suit brought to enforce the payment of said judgment, it must at least bo held as equivalent to a dismissal of the suit on the motion of the plaintiff without prejudice. This suit thus brought and dismissed cannot have the effect to arrest the running of the statutory bar, against the lien of the plaintiff’s judgment in another suit brought to enforce the collection thereof. Braxton v. Wood’s Adm’r,4 Gratt. 26.

The last execution issued on the plaintiff’s judgment was returnable on the first Monday of January, 1859. As no return of the officer Was endorsed thereon, the plaintiff’s right, under the law then in force, to sue out other executions, or to bi’ing a scire facias or action thereon would have expired at the end of ten years after the return day of said execution.

We have seen, by section 11 of chapter 139 of the Code of West Virginia, that where executions had issued within two years from the date of the judgment, other executions might issue thereon within ten years from the return day of the last execution issued thereon, on which there is no return by an officer or which had been returned unsatisfied; and that by section 11 of chapter 139 of said Code, the right to sue out other executions, or to bring a scire facias, or action on a judgment, should not exist after the period mentioned in section 11 of that chapter, except that in computing the time within which new executions might issue or scire facias or action might be brought thereou, the period from the 17th day of April, 1861, until the 1st of March, 1865, (and- certain other excepted periods none of which have any application in this case,) is to be excluded from such computation. Excluding this period and the plaintiff’s right to sue out other executions, or to bring a scire facias or action, on his judgment expired at the end of thirteen years, ten months and fourteen days from the first Monday in January, 1859, which could not have been later than the 21st day of November, 1872. As the lien of the plaintiff’s judgment ceased to to exist when his right to sue out execution, or to bring a scire facias or action thereou, is barred by the statute of limitations; it follows that on September 16, 1874, when this suit was instituted the lien of the plaintiff’s judgment had ceased to exist, and therefore no suit to enforce the same could be sustained. Werdenbaugh v. Reid, &c., 20 W. Va. 588. We are therefore of opinion, that the decree of the circuit court of Gilmer county rendered in this cause on the 17th of September, 1878, must be affirmed, and that the ap pellant must pay the appellee Hays his costs in this Court expended and thirty dollars damages.

AFFIRMED.