Opinion
(January Term, 1867.)
1. A writ of scire facias upon a judgment in a county court, notwithstanding the Stay Law of September, 1861, will not lie, except to the court in which the judgment is.
2. Where a writ of scire facias upon a judgment in a county court had been brought to a Superior Court: Held, that notwithstanding the Stay Law of the Convention of 1866, it would be dismissed at the costs of the plaintiff.
SCIRE FACIAS, before his Honor, Fowle, J., at Fall Term, 1866, of the Superior Court of ALAMANCE.
Graham for plaintiff.
Ruffin for defendant.
The writ had been sued out of the Superior Court, returnable to Spring Term, 1864, and recited a judgment in the County Court of Alamance. At the Fall Term, 1866, the plaintiff moved to dismiss the writ at the costs of the defendant, but his Honor ordered it to be dismissed at the costs of the plaintiff, and from this judgment the latter appealed.
By 13 Edw. 1, ch. 45, reenacted Rev. Code, ch. 31, sec. 109, it is provided: "No execution shall issue upon any judgment obtained in said courts after a year and a day from the rendition thereof, and when the party shall come after the year and a day he shall cause a scire facias to be issued to give notice to the defendant, `that he (176) appear before the court in which the judgment is at a certain day,'" etc.
So it is entirely clear that a scire facias cannot issue from the Superior Court upon a judgment in the county court.
But it is said the act of 1861 suspends all proceedings in the county courts in regard to matters of debts and contracts, and directs writs and other process to be made returnable to the Superior Courts; and it is insisted that this extends to writs of scire facias. Such does not seem to us to be the proper construction.
The plaintiff could have brought an action of debt in the Superior Court upon the judgment in the county court; so he had the remedy contemplated by the statute, and there are no words used to show an intention to give him the additional remedy by sci. fa., which is a peculiar one and is confined by the express words of the statute giving it "to the court in which the judgment is."
It was then insisted by Mr. Graham that under the ordinance of 1865 the sci. fa. ought to have been dismissed at the cost of the defendant.
The ordinance obviously has reference to writs of sci. fa. properly constituted in courts, and it would be a perversion of its purpose and design to give it the effect of preventing a defendant from availing himself of a fatal objection or motion to dismiss, which of course would be at the costs of the plaintiff.
It was only in the event that the defendant could not otherwise get rid of the sci. fa. that the ordinance confers upon him the privilege of having it dismissed, provided he will pay the cost. Here the defendant did not choose to resort to the ordinance, as there was, upon the face of the sci. fa. a fatal objection.
PER CURIAM. Judgment affirmed.
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