U.S. Supreme Court
Browne v. Chavez, 181 U.S. 68 (1901)
Browne v. Chavez
Nos. 165 and 217
Argued March 6, 1901
Decided April 8, 1901
181 U.S. 68
While a scire facias, for the purpose of obtaining execution, is ordinarily a judicial writ to continue the effect of a former judgment, yet it is in the nature of an action, and is treated as such in the statutes of New Mexico. After a judgment is barred under those statutes, the writ of scire facias, giving a new right and avoiding the statute, cannot be maintained.
This case was brought here both by writ of error and appeal. As there was no trial by jury, and the issues were only questions of law determined by the trial court on demurrer, the writ of error is dismissed, and the cause considered on the appeal.
On the 7th of October, 1885, the firm of Browne, Manzanares & Company, composed of L. P. Browne, since deceased, and F. A. Manzanares, recovered judgment against Francisco Chavez, 2d in the District Court of Bernalillo County, for the sum of $4,170, damages and costs. No action was taken in respect of this judgment, and no execution was issued upon it so far as this record discloses. September 30, 1895, a writ of scire facias was sued out and service had. The defendant filed two pleas, the first suggesting the death of one of the plaintiffs since the rendition of the judgment, which plea was abandoned, the second the plea of the statute of limitations, to which a demurrer was interposed by plaintiffs, which was overruled by the court. Plaintiffs thereupon refused to plead further, and stood by their demurrer, whereupon the court rendered judgment dismissing the writ.
The statutes referred to are as follows:
An Act of January 23, 1880, compiled in 1884 as sections 1860 and 1861, as follows:
"SEC. 1860. The following suits or actions may be brought within the time hereinafter limited, respectively, after their
causes accrue, and not afterwards, except when otherwise specially provided."
"SEC. 1861. Actions upon any judgment of any court of record of any state or Territory of the United States, or the federal courts of the United States, within fifteen years."
An act of February 10, 1887, compiled in 1897 as sections 3085-3086, as follows:
"SEC. 3085. That hereafter it shall not be necessary to bring proceedings in any court to revive a judgment having been already obtained before a court of competent jurisdiction in this territory, except in cases where such judgment had been rendered for a period of five years or more next preceding the issue of final process for the enforcement of the same."
"SEC. 3086. An execution may issue at any time, on behalf of anyone interested in such judgment referred to in the above section, within five years after the rendition thereof, and without the necessity of bringing an action to revive the same."
An act of February 24, 1891, as follows:
"SECTION 1. That so much of the laws of the Territory of New Mexico as is compiled as section 1861 of the Compiled Laws of the Territory of New Mexico of 1884 be, and the same is hereby, repealed, and the following be and is hereby substituted therefor:"
" SEC. 2. (1861). Actions founded upon any judgment of any court of the Territory of New Mexico may be brought within seven years from and after the rendition of such judgment, and not afterward, and actions founded upon any judgment of any court of record of any other territory or state of the United States, or of the federal courts, may be brought within seven years from and after the rendition of such judgment, and not afterward: Provided, That actions may be brought upon any existing judgment which, but for this proviso, would be barred, within one year from and after the passage of this act, and not afterward, and all actions upon such judgments not commenced within the time limited by this act shall be forever barred."
This section was brought forward as section 2914 of the Compiled Laws of 1897. chanroblesvirtualawlibrary