Burton v. McGregor and Another, 4 Ind. 550

Perkins, J. Scire facias to obtain execution against replevin-bail. Judgment below awarding execution. The cause originated before a justice of the peace. On the 24th of September, 1839, Matthew Stewart obtained a judgment by default before a justice of the peace of Vigo county, against Stephen P. Cammach. The summons was served on Cammach on the 21st, and judgment was rendered against him, as has been said, on the 24th of the same month. On the 29th of October, 1839, John Burton entered himself replevin-bail to said judgment.

Subsequently, Matthew Stewart died, and Alexander McGregor and Elizabeth Stewart were appointed his executors, and revived, in their names, the judgment against Cammach, and, on the 23d of March, 1849, moved before the justice for a scire facias to obtain an award of execution against him, such a step having become necessary from the lapse of time since the issuing of a former one. Two returns of “not found” were obtained and noted on the docket, the second being on the 4th of April, 1849. No judgment was rendered by the justice.

An execution, however, issued, purporting to be upon a judgment upon the scire facias, and for the debt, and interest and costs of the original judgment, and a judgment upon the scire facias against Cammack, on the 21st of May, 1849, which was returned on the 5th of June following, “no property,” &c. On the 18th of the same month the scire facias in this suit issued against Burton, the replevin-bail. It alleged a revived judgment, and an execution thereon, against Cammack, and was returnable on the 25th of June, at which time the cause was continued to the 7th of July.

At that date, the justice amended, as it is called, by entering up judgment on his docket against Cammack, the judgment-debtor, on the second return of “not found” made to the scire facias against him on the 4th of April previous. The defendant objected. A plea by Burton of the statute of limitations was rejected in the Circuit Court, and, as has been stated, that Court gave judgment, as the justice had done, awarding execution against Burton.

At the time Burton became replevin-bail upon the judgment against Cammack, the law did not give to his undertaking the force of a judgment, as, since the statutes of 1843, it has to similar ones. His amounted simply to an obligation to pay the judgment if it could not be made by an execution against the principal debtor, and constituted the foundation on which a judgment against the bail might be placed upon such a contingency having happened.

No joint execution could then, as it can now, issue against the judgment-debtor and the bail, before a justice of the peace; and it devolved upon the plaintiff, before attempting to proceed by scire facias against the bail, to have an execution returned “ no property,” &c., against the principal; and it was necessary, on the trial upon the scire facias, for him to prove that he had done this.

In the present case, had the execution-plaintiffs elected to issue an execution on the original judgment, without a revivor against Cammack, and succeeded in procuring a return of “no property” upon it, there being-no motion interposed to set it aside before its return, we do not decide what the effect might have been. As it is, the plaintiffs elected to revive, and to issue their execution, according to its purport, upon the revived judgment, and their proof upon the trial must necessarily have corresponded.

They might, therefore, upon such trial, have been called upon to show a revived judgment against Cammack, as the foundation of the execution against him. This shows that the amendment by the justice, in entering up judgment against Cammack, was material in the present suit, and that, consequently, the defendant in it had a right to raise the question as to his power to make the amendment. A proceeding by scire facias is a suit in which the defendant must have notice, is entitled to appear and plead, and have a trial of issues made.

It falls, therefore, within the cases in which the statute fixes the time for the rendition of judgment. The longest time allowed is four days from the submission of the cause. Upon a default, the return-day of process, when service has been made in time, is the day of submission, unless a continuance is entered. None was entered in the case in question. The failure of the justice, therefore, to enter judgment within the period required, worked a discontinuance of the suit, and terminated his authority over it. The plaintiff should have recommenced the suit.

The entry of judgment by the justice, at the time he did, was

an act coram non judice, and void. Young v. Rummell, 5 Hill (N. Y.) R. 60. The Court did right in rejecting the plea of the statute of limitations. It was only judgments before a justice that were barred by the statute. The entry of bail in this case, as we have seen, was not a judgment. J. P. Usher, for the plaintiff. Had Commack interposed the plea to the scire facias against him to revive, it would have been a bar. Stipp v. Brown, 2 Ind. R. 647. Per Curiam. The judgment is reversed with costs. Cause remanded, &c.