Vick v. Chewning's Heirs

31 Miss. 201

• Court: Mississippi Supreme Court
• Decided: April 15, 1856
• Status: Published

Opinions

Fisher, J.,

delivered the opinion of the majority of the court.

The appellant on the 30th of January, 1842, recovered a judgment in Warren Circuit Court against James J. Chewning. Executions at various times were issued upon this judgment, the last execution appearing to have issued on the 22d of February, 1851. Chewning the debtor, having died some time prior to the 22d of October, 1852, the exact time of his death not being stated or shown, a writ of scire facias to revive the judgment against his administrator, was issued by the clerk of said court on the day above named. The administrator appearing, interposed as a defence to the writ of scire facias, the Statute of Limitations, and the court upon the above state of facts, held the statute to be a good defence, and thereupon refused to revive the judgment against the administrator. The statute is in these words, “judgments in any court of record in this State, shall not be revived by scire facias ; nor shall any action of debt be instituted thereon after the expiration of seven years next after the date of such judgment; nor shall any person sue out an execution on any judgment or decree after seven years from the time the last execution issued on such judgment or decree.” Hutch. Code, 830, 831, § 8. If this statute be taken according to the plain import of its words, what must we understand to have been the intention of the legislature ? Certainly that a judgment cannot be revived by scire facias or made the foundation of an action of debt, if seven years had elapsed before such proceeding was commenced. The statute is positive in its terms, that the thing shall not be done after the period of seven years from the date of the judgment, or in this case, we may say from the passage of the law. The court, cannot, in the construction of the statute, engraft upon it any other exceptions, than such as the legislature declared in the enactment of the law.

It may be true, that the plaintiff has a right to his execution against the debtor, so long as he pursue this remedy without the aid of a scire facias. But it must not be supposed that, because the party is not restricted as to the time in which he may have one remedy, that he is not therefore restricted as to other remedies.

The question is, can the plaintiff proceed with the execution of his judgment without the aid of a scire facias ¶ The statute declares, that this remedy, whether it be considered merely as process, or an original proceeding, shall not be employed after the lapse of seven years, from the date of the judgment.

Smith, C. J., concurred.