Whitworth v. Thompson. ought to have rendered, without a procedendo, and, upon a further appeal to this court, the judgment creditor is entitled to the same judgment. FROM DAVIDSON. Appeal in error from the Circuit Court of Davidson county. N. BAXTER, J. E. H. EAST for Whitworth. GUILD & DODD for Thompson. COOPER, J., delivered the opinion of the court. On December 16, 1874, T. D. Cassetty, a justice of the peace, issued a scire facias, which recited that it had been represented to him by affidavit of D. F. Thompson, that he, Thompson, about January 1, 1861, before W. D. Robertson, the predecessor in office of Cassetty, had recovered a judgment against John F. Edmondson, for $92 and costs, which was stayed by E. D. Whitworth; that there had been paid on the judgment about January 20, 1862, $20, leaving the residue in full force and effect and unsatisfied; that the books of said Robertson had been torn and otherwise mutilated, and the judgment, after diligent search, could not be found; that Thompson demanded an execution upon the judgment from Cassetty as the successor of Robertson; and the said scire facias, upon these recitals, directed the proper officer to make known the facts to the said Edmondson and Whitworth, and to summon them to appear before Cassetty on a given day, and show cause, if any they have, why said judg31-VOL. 8. Whitworth v. Thompson. ment should not be revived against them. The scire facias was made known to the parties named, who appeared, and made defense. The justice rendered judgment in favor of the defendants, and the plaintiff appealed. The cause was called for trial in the circuit court on May 15, 1876, when the defendants moved to quash the scire facias, but the motion was overruled. On the trial, the jury found that the original judgment was rendered by Robertson on February 27, 1860, for $94,21, that the judgment was entitled to a credit of $40, as of the 25th of November, 1861, and that the balance then due, including interest, was $119,86. The court, thereupon, rendered judgment as follows: "It is therefore considered by the court, that the plaintiff recover of the defendants, John F. Edmondson and E. D. Whitworth, his damages, as by the jury in form aforesaid assessed, together with all the costs of this cause expended, for which let fi. fa. issue; and it is further ordered that procedendo issue to Cassetty, successor to W. D. Robertson, to issue execution for $119,86, and costs of suit against the principal and stayor as security in favor of plaintiff, and fi. fa. issue from this court against defendant and security for the costs of this court." The defendant, Whitworth, appealed in error. The error relied upon for reversal is in the ruling of the court upon the motion to quash the scire facias. The motion was to quash the scire facias "because it states no cause for which a scire facias would lie at law." The scire facias, which was issued December 16, Whitworth v. Thompson. 1874, purports on its face to be based upon a judgment recovered about the first of January, 1861, against one defendant, and stayed by the other, and requires the defendants to show cause why the judgment should not be revived against them. It is in form a scire facias between the original parties to revive a judg ment. At common law, the failure to sue out execution within a year raised a presumption of the payment or release of a judgment. If, in fact, the judgment remained unsatisfied, a scire facias to revive lay in real actions, and was given by an early English statute in personal actions: Hess v. Sims, 1 Yerg., 143; Deberry v. Adams, 9 Yerg., 52; 6 Com. Dig. Pleader, 3 L., 5; Tidd. Pr., 1103. The grant of the writ by statute was general, "si forte a majore tempore transacto facto fuerit illa recognito," etc., if the recognizance or record be of a longer time than one year. It seems, therefore, to have been held that while the writ must be sued out where the judgment lay for a year without execution, yet it would lie in every case where the whole debt had not been levied, even if execution issued within the year: Stille v. Wood, Coxe, 118; 4 Bouv. Inst., sec. 3702. And the validity of the writ within the year appears to be recognized in an early case cited by the text writer: Roberts v. Pising, Roll. Ab., 900. The mode of obtaining the writ depended on the time after the judgment when it was sued out: 2 Tidd. Pr., 1105. The practice in this regard was held to prevail in this State in Keith v. Metcalf, 2 Swan, 74, a decision made in 1852 upon a scire fa Whitworth v. Thompson. cias issued in August, 1850. Previously, by the act of 1849, ch. 37, brought into the Code in sec. 2987, it was provided that an execution might be sued out at any time after judgment, whether an execution had been run within the year or not. The new remedy thus given did not, upon a well settled principle, interfere with the pre-existing remedy: Hoggat v. McCrory, 1 Tenn., 8; Henry v. Keys, 2 Head, 488. The Code, sec. 2776, having prescribed a limitation of ten years to the right of action on a judgment, we have held, in obedience to the legislation intent, that the lapse of that period would prevent the issuance of execution unless the judgment be revived by scire facias: McGrew v. Reasons, 3 Lea, 485. And, inasmuch as the right to revive would be barred by the lapse of the time if relied on, the right to revive by scire facias sued out within the ten years would seem to follow, of course, unless the creditor be required to sue upon the judgment, which he may do at any time. Be this as it may, the right to the scire facias after the ten years is conceded: Lain v. Lain, 3 Baxt., 30; Gregory v. Chadwell, 3 Cold., 902; Fogg v. Gibbs, 8 Baxt., 464. Obviously, therefore, the scire facias in this case, sued out to revive a judgment rendered more than thirteen years before, was proper, and contains all the averments necessary to sustain it for that purpose. For it recites the judgment, and shows that it is in full force and unsatisfied, and the lapse of the ten years. And by statute, a justice of the peace is authorized to issue a scire facias in all cases before him, when necessary, in the same manner as the writ Whitworth v. Thompson. is issued by courts of record: Code, sec. 3576. The only departure from the ordinary form of a scire facias is in requiring the defendants to show cause why the judgment should not be revived, instead of showing cause why plaintiff should not have execution of his judgment. The object being to revive the judgment, the change of phraseology is clearly immate rial. The argument submitted on behalf of the plaintiff in error is not addressed to the proceeding treated as a scire facias to revive the judgment. It goes upon the assumption that the object of the proceeding was to supply the original judgmeut. In this view, it is perhaps correctly argued that the remedy for the purpose was not by scire facias. The judgment might have been treated as still existing, although the record of it was lost or destroyed: Boyers v. Webb, 1 Lea, 700; Faust v. Echols, 4 Cold., 397; Randall v. Payne, 1 Tenn. Ch., 145. But the scire facias is plainly to revive the judgment, not to supply it, and the recital of the loss of the record would not change its character. A scire facias will lie to revive a lost judgment: Fogg v. Gibbs, 8 Baxt., 464. It is suggested that the affidavit on which the scire facias issued does not aver that the plaintiff in error was a party to the judgment, and consequently furnishes no basis for the proceeding against him. But the scire facias itself does recite that Whitworth party defendant to the judgment by having become stayor, and the motion to quash is directed to the sufficiency of the scire facias. The absence of an affi |