Mr. Justice M'Lean
delivered the opinion of the- Court.
These cases are brought before this Court, from the- Circuit Court of Kentucky, by writs of error.
The plaintiff in error, who was the plaintiff in the Circuit Court, issued two writs of scire facias, to revive the judgments rendered in the aboye cases the 19th of June, 1800, against Shockey and Rose,' the original defendants, and the heirs of Craig. Alias writs were-issued, and on the first and second writs the marshal returned served on several of the heirs named ;• and that Shockey and Rose were deceased,
In both cases, the defendants demurred to the writs of scire facias, and also pleaded nul tiel record. Issue being joined,.the Court gave judgments for the defendants on both issues; to revive which judgments.these writs of error were prosecuted.
A'bill .of exceptions spreads upon the record the evidence that was. before the Court on the issue of nul tiel record.
We will first consider the questions arising on the demurrer. -
It seenris. to be the practice, in Kentucky not to. file a declaration on-a writ of scire facias, but to consider the writ as the declaration.
-It is insisted that these writs are all defective in not stating the term as laid in the declarations, nor any facts which showed its continuance : and a decision in.7Monroe, 601, where it is stated that a scire facias to revive a judgment in ejectment, must state the term yet to come, as laid in the declaration is relied on.
In the .above writs it is stated that the term recovered is yet ..unexpired : and we think this allegation is sufficient. It would be an extremely technical rule to require greater strictness than this. In 1 J. J. Marshall’s Rep.
5;
the Court of Appeals say, if a-scire facias contain such recitals as will point to the judgment intended to be revived, with such certainty that the defendant must kno.w what judgment was meant, it will be sufficient. And again, in 3 J. J. Marshall, 564, the Court held, that where the scire facias contained an extract from the judgment,'and referred to the record and proceedings in the suit, it was' good. That execution is awarded on the original judgment, and the proceedings on .that judgment being referred ttf in the writ, if the term had expired, the defendant might show it
The amendments made in 1824, which extended the demises fifty years,' hot being inserted in the declarations, it is insisted that they ' cannot be considered as a part of the records referred to in the writs of scire facias: if leave had been' generally given to- amend, and no amendments of the declarations had been .made, the objection would be insurmountable. But -the amendments, were specific, and they were entered on the records of the Court-; and they referred to the cases ; so that too complete'records of them could, be made, without including these amendments. It was therefore Unnecessary to interline them in the declarations.
The’ writs by statements of fact's and by references, we think, contain sufficient certainty.
But it is contended that the demurrers should be sustained oh the ground of lapse of time.
The judgments sought to be revived were entered in 1800;. but how is the lapse of time to operate ?
If is not pretended that 'there is any statute or rule in'Kentucky, which limits a revival of -'the judgments'; and it is very clear, that at law, lapse of time can only operate by way of evidence.
From lapse of time and favourable circumstances, the- existence of a deed may be presumed, or that an obligation has been discharged; but this presumption always-arises under pleadings which would render the'facts presumed proper evidence.' A demurrer 'raises only questions of law, on the facts stated in the writs of scire faeias themselves. No.-evidence.is heard ; and, consequently,, there is no ground for' presumption from lapse of time.
Can the demurrer be sustained on. the ground of the marshal’s return that Shóckey and Rose, .defendants in the judgments, are dead?- .
■The marshal’s return,-it is said, becomes a matter.of record, arid therefore, advantage may be taken of this defect by demurrer.
It is admitted that the marshal’s return of service, ot non-service, which he endorses on the process, and of which he has official, knowledge, becomes matter of record, and is binding on the parties. But the marshal can ohly know, in common with other-citizens, o.f the decease of a person named in the writ; - and. if he endorse the fact of such dec’ea'se, though it may be spread on the record, it is clearly not binding on the parties. Shall a rumour, which shall,, in the opinion of the marshal justify such endorsement, make the fact' a matter of record ? It may excuse the officer; but it does not bind the party whose' rights are involved.
The demurrers treat the fact of the death of these defendants as matter-of .record; and if it'be matter .of' record it cannot be controverted. In this view, then, if the rumour on which the-, marshal made' the. endorsement bé falsé, the rights of the plaintiff are- forever concluded. ¿He'cannot'revive his judgment against-'the heirs of living defendants; and yet he. cannot dispute
the
fact of-their decease, as entered on the record.
A plea in abatement was the proper mode of taking advantage'
.of the decease of these defendants. Onthis plea the plaintiff could take issue on the fact of the decease, and have it ascertained by the verdict of a, jury. Bac. Ab. Abatement, L. Chitt. Plead. 442. If these defendants be dead, it would be error to revive the judgments without the service of process ori their representatives. But demurrers cannot be interposed, which shall treat the fact of their decease as "matter of record; and which may prevent the plaintiff from issuing other writs ,in the cases.
In every view which we can take of the questions properly arising on the demurrers, we think the Circuit Court erred in sustaining them.
As the subject matter of dispute is land over which the administrators or executors of the deceased defendants have ho control, we do not perceive the necessity or propriety, of making them parties in the writs.
The law is well settled, that where a defendant in eje,ctmént dies, the judgment must be revived by a scire facias against both his heirs and the- terre tenants. 2 Salk. 598. 600. 2 Saund. 7, n. 4. Cro. Jac. 506. And this is the rule of practice in Kentucky.
We come now to consider, the evidence offered and rejected by the Circuit Court, under the issue of nul tiel record.
The records offered were rejected on the ground that the amendments made in 1824, extending the demise in each case to fifty years,- having been made without notice to the defendants or the terre tenants, wore null and void.
In both cases the demise had expired before the judgments were-entered; but the fact seems not to have been noticed by the counsel on either side.
Free access — add to your briefcase to read the full text and ask questions with AI
Mr. Justice M'Lean
delivered the opinion of the- Court.
These cases are brought before this Court, from the- Circuit Court of Kentucky, by writs of error.
The plaintiff in error, who was the plaintiff in the Circuit Court, issued two writs of scire facias, to revive the judgments rendered in the aboye cases the 19th of June, 1800, against Shockey and Rose,' the original defendants, and the heirs of Craig. Alias writs were-issued, and on the first and second writs the marshal returned served on several of the heirs named ;• and that Shockey and Rose were deceased,
In both cases, the defendants demurred to the writs of scire facias, and also pleaded nul tiel record. Issue being joined,.the Court gave judgments for the defendants on both issues; to revive which judgments.these writs of error were prosecuted.
A'bill .of exceptions spreads upon the record the evidence that was. before the Court on the issue of nul tiel record.
We will first consider the questions arising on the demurrer. -
It seenris. to be the practice, in Kentucky not to. file a declaration on-a writ of scire facias, but to consider the writ as the declaration.
-It is insisted that these writs are all defective in not stating the term as laid in the declarations, nor any facts which showed its continuance : and a decision in.7Monroe, 601, where it is stated that a scire facias to revive a judgment in ejectment, must state the term yet to come, as laid in the declaration is relied on.
In the .above writs it is stated that the term recovered is yet ..unexpired : and we think this allegation is sufficient. It would be an extremely technical rule to require greater strictness than this. In 1 J. J. Marshall’s Rep.
5;
the Court of Appeals say, if a-scire facias contain such recitals as will point to the judgment intended to be revived, with such certainty that the defendant must kno.w what judgment was meant, it will be sufficient. And again, in 3 J. J. Marshall, 564, the Court held, that where the scire facias contained an extract from the judgment,'and referred to the record and proceedings in the suit, it was' good. That execution is awarded on the original judgment, and the proceedings on .that judgment being referred ttf in the writ, if the term had expired, the defendant might show it
The amendments made in 1824, which extended the demises fifty years,' hot being inserted in the declarations, it is insisted that they ' cannot be considered as a part of the records referred to in the writs of scire facias: if leave had been' generally given to- amend, and no amendments of the declarations had been .made, the objection would be insurmountable. But -the amendments, were specific, and they were entered on the records of the Court-; and they referred to the cases ; so that too complete'records of them could, be made, without including these amendments. It was therefore Unnecessary to interline them in the declarations.
The’ writs by statements of fact's and by references, we think, contain sufficient certainty.
But it is contended that the demurrers should be sustained oh the ground of lapse of time.
The judgments sought to be revived were entered in 1800;. but how is the lapse of time to operate ?
If is not pretended that 'there is any statute or rule in'Kentucky, which limits a revival of -'the judgments'; and it is very clear, that at law, lapse of time can only operate by way of evidence.
From lapse of time and favourable circumstances, the- existence of a deed may be presumed, or that an obligation has been discharged; but this presumption always-arises under pleadings which would render the'facts presumed proper evidence.' A demurrer 'raises only questions of law, on the facts stated in the writs of scire faeias themselves. No.-evidence.is heard ; and, consequently,, there is no ground for' presumption from lapse of time.
Can the demurrer be sustained on. the ground of the marshal’s return that Shóckey and Rose, .defendants in the judgments, are dead?- .
■The marshal’s return,-it is said, becomes a matter.of record, arid therefore, advantage may be taken of this defect by demurrer.
It is admitted that the marshal’s return of service, ot non-service, which he endorses on the process, and of which he has official, knowledge, becomes matter of record, and is binding on the parties. But the marshal can ohly know, in common with other-citizens, o.f the decease of a person named in the writ; - and. if he endorse the fact of such dec’ea'se, though it may be spread on the record, it is clearly not binding on the parties. Shall a rumour, which shall,, in the opinion of the marshal justify such endorsement, make the fact' a matter of record ? It may excuse the officer; but it does not bind the party whose' rights are involved.
The demurrers treat the fact of the death of these defendants as matter-of .record; and if it'be matter .of' record it cannot be controverted. In this view, then, if the rumour on which the-, marshal made' the. endorsement bé falsé, the rights of the plaintiff are- forever concluded. ¿He'cannot'revive his judgment against-'the heirs of living defendants; and yet he. cannot dispute
the
fact of-their decease, as entered on the record.
A plea in abatement was the proper mode of taking advantage'
.of the decease of these defendants. Onthis plea the plaintiff could take issue on the fact of the decease, and have it ascertained by the verdict of a, jury. Bac. Ab. Abatement, L. Chitt. Plead. 442. If these defendants be dead, it would be error to revive the judgments without the service of process ori their representatives. But demurrers cannot be interposed, which shall treat the fact of their decease as "matter of record; and which may prevent the plaintiff from issuing other writs ,in the cases.
In every view which we can take of the questions properly arising on the demurrers, we think the Circuit Court erred in sustaining them.
As the subject matter of dispute is land over which the administrators or executors of the deceased defendants have ho control, we do not perceive the necessity or propriety, of making them parties in the writs.
The law is well settled, that where a defendant in eje,ctmént dies, the judgment must be revived by a scire facias against both his heirs and the- terre tenants. 2 Salk. 598. 600. 2 Saund. 7, n. 4. Cro. Jac. 506. And this is the rule of practice in Kentucky.
We come now to consider, the evidence offered and rejected by the Circuit Court, under the issue of nul tiel record.
The records offered were rejected on the ground that the amendments made in 1824, extending the demise in each case to fifty years,- having been made without notice to the defendants or the terre tenants, wore null and void.
In both cases the demise had expired before the judgments were-entered; but the fact seems not to have been noticed by the counsel on either side.
In 1800, and shortly after the rendition of thé judgments, the defendants filed a bill setting up an adverse, and as they alleged,,a paramount equitable title to that of Walden for the land in controversy-; and obtained an injunction to stay proceedings on the judgments. This injunction was continued until May term, 1809, when it was dismissed by the Court for want of jurisdiction.
In 1811, another-bill was filed and an injunction obtained, which at May.term, 1812, was dissolved; and in 1813, the''bill was dis-' missed by the complainants, at rulés, in the clerk’s office.
Writs of possession were issued the 2d June,' 1812, which, at July term, 1813, were quashed, on the ground that the demises had expired.
At July term, 1817, a rule ..was entered for the defendants, Craig and Rose., to show cause, at the next term, why the demise in the declaration should not be extended. And at November term, 182-1, the Court overruled the motion. To this decision a bill of exceptions was taken, which stated that the above-rule had been served on the defendants.
A writ of error was taken out and the decision of the Court in the case, is reported in 9 Wheat. 576. In their opinion, the Court say, that the power of amendment is extended, at least, as far in
the thirty-second section of the Judiciary Act as in any of the British statutes; and that there is no species of action to which the discretion'of the Court, in this respect, ought to be more liberally applied than to the action of ejectment. The proceedings are all fictitious, fabricated'for the mere purposes of justice; and there is every reason for allowing amendments in matters of mere form. “ And,” they say, “ there is peculiar reason in this case, where the cause has been protracted, and the plaintiff kept out of possession beyond the term laid in the declaration, by the excessive delays practised by the opposite party. The cases cited by the plaintiff’s counsel in argument are, we think, full of authority for the amendment which .was asked in the Circuit Court; and we think the motion ought to have prevailed.”
But the Court decided that they could not take jurisdiction of the case, as a writ of error would not lie on the decision of a collateral motion in a cause.
After this decision of the Court, was certified ,to the Circuit Court, the • following entry was made on the record. “ And afterwards, to wit, at the May term of the Court aforesaid, in the year 1824, until which time the motion to extend the demise in the declaration was continued, &c. and leave is given on motion to amend the declaration by extending the demise to fifty years; which is done accordingly.” .
’In the other case against Craig and Shockey, there does not appear to have been a rule entered for the extension of the demise, or that notice was served of the motion. .But the same entry was made of the continuance of the motion and the extension of the demise, as in the other case.
In onu of the cases, then, there is evidence of notice having been given, but not in the other. And the question may be considered, whether there having been no notice, the amendment must be considered as void. If it be only erroneous and voidable, the Circuit Court erred in rejecting the record.
The demises in the declarations haying expired before the. judgments; they could not authorize writs of habere facias possessionem ; but they were not void. They wére judgments on which executions-might issue for the damages and costs. And the .amendments having relation back to the expiration of the demises, gave vitality to both the judgments, the same- as if the terms had originally been stated at fifty years.
It is admitted that the service of process, or notice, is necessary to enable a Court to exercise jurisdiction jn a case; and if jurisdiction be taken where there has been no service of process, or notice, the proceeding is a nullity.’ It is not only voidable.huffit is absolutely void. But. this is only where original jurisdiction is exercised; and not a decision of a collateral-question ,in a case where the parties are before the Court.
If it .were necessary, notices in the cases under consideration might well be presumed. For it does not follow that nd notices were
given, because none appear upon the record.. The fact oi notice may be proved by parol. But however convenient in practice; and indeed, necessary, to some extent, to preserve from prejudice the fights of parties, notice in .such cases may be; still it is a question of practice. If does not go, except under a positive rule, to the. exercise of the power of amendment by the Court.'
After the judgment, the parties are still in Court for all the purposes of giving effect to it. And in the action pf ejectment, the Court having power to extend .the demise after judgment, the defendant may be considered in Court on this motion to amend as well as on any other motion or order which may be necessary to carry into effect the judgment. In no correct sense is the exercise of this power of amendment similar to the exercise of an original jurisdiction, between parties on whom process has not been served.
No new parljfes are made on the record, and no rights of the terre tenants are”barred by the extension of this legal fiction: a fiction formed by the' Courts, and modified by them for the great purposes of justice.
' The. plaintiff’s title was established by the judgment; and it would be most unreasonable and unjust to deny him the fruits of these judgments, on the ground that the fictitious lease had expired, and which.the Court hád power to amend.
The judgments are described with .sufficient accuracy; and there being no objection to the records except the one above considered,' we think the Circuit Court erred in excluding the judgments as evidence : and on this ground also are the judgments of that Court reversed.
This cause came on to be heard on the transcript of the record .from the Circuit Court mf the United States for the District of Kentucky, and was argued by counsel. On consideration whereof, it is. ordered and adjudged by this Court, that the judgment of the said Circuit Court, in this cause be, and the same is hereby, reversed with cost.s, and that this cause be, and ihe same is hereby, remanded to the said Circuit Court with directions to proceed therein, according to law and justice, and in conformity with the opinion of this Court.