Opinion
(December Term, 1837.)
If a scire facias be sued out upon a judgment of more than ten years' standing, without motion, supported by an affidavit of the debt being due, the judgment unsatisfied, and the defendant living, it may be set aside for irregularity, provided the objection be taken in the first instance; but if the defendant pleads to the merits, he cannot afterwards avail himself of this irregularity.
THIS was a SCIRE FACIAS, issued from Caswell County Court, at its April Sessions, 1832, to revive a judgment which had been rendered in that Court, at its October Sessions, 1821. Upon that judgment it appeared that an execution had issued returnable to January Term, 1822, and returned "nothing to be found," and it did not appear that any other execution had ever issued. On the return of the scire facias, "the defendant entered his appearance, and pleaded nul tiel record, payment, and set-off; and the cause was continued from term to term, until July Term, 1835, when it came on for trial; and a jury being empannelled, before any evidence was offered, the defendant's counsel moved to dismiss the sci. fa., because it had been issued without motion, and without an affidavit; and it was dismissed accordingly : upon which the plaintiff appealed to the Superior Court, where his Honor Judge SAUNDERS, on the last Circuit, affirmed the judgment below; and the plaintiff appealed.
J. T. Morehead, for the plaintiff.
W. A. Graham, for the defendant.
— The rules of practice in our Courts of law, when not otherwise settled, have been modelled after those which obtained in the Court of King's Bench, before the Revolution. According to the old established usages of that Court, when a judgment was of more than seven, but less than ten years' standing, the plaintiff could not have a scire facias, without a side-bar rule; if the judgment had been above ten years old, there must be a motion to the Court, supported by an affidavit of the debt being due, the judgment unsatisfied, and the defendant living; upon which the rule was absolute in the first instance; unless the judgment were of more than twenty years' standing, and then there must be a rule to show cause. We have no side-bar rules here, and therefore a scire facias may issue as of course upon a judgment which is not ten years old. But the residue of the rule of practice in the Court of King's Bench has obtained also in our courts.
The scire facias in this case issued irregularly, and might have been set aside on objection being made to it in apt time. But it is a well-settled rule, that where there has been irregularity in process, and the party having right to object thereto do not make the objection as early as may be, or as is commonly said, "in the first instance," he cannot afterwards revert to that irregularity. If he overlook it, and take subsequent steps in the cause, he thereby waives his objection. In the present case, the defendant appeared to the scire facias, pleaded to the merits, put his cause upon these pleas, and after repeated continuances, moved to dismiss the scire facias, because it was sued out not in conformity to the prescribed mode of proceeding. In our opinion, the Court erred in granting the defendant's prayer. The judgment of the Court below is to be reversed; with directions to that Court to proceed to the trial of the issues in the cause.
PER CURIAM. Judgment reversed.