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THE LESSEE OF AMBROSE WALDEN, PLAINTIFF IN ERROR, v. JOHN CRAIG'S HEIRS AND OTHERS

January 1, 1840

THE LESSEE OF AMBROSE WALDEN, PLAINTIFF IN ERROR,
v.
JOHN CRAIG'S HEIRS AND OTHERS, DEFENDANTS IN ERROR.



IN error to the Circuit Court of the United States for the District of Kentucky. This case was argued by Mr. Underwood for the plaintiff in error; and by Mr. Crittenden for the defendant. As stated in the brief and argument for the defendant, the case was: 'This is a scire facias to revive a judgment on ejectment of the District Court of the United States for the Kentucky District, which Walden's lessee had recovered against Lewis Craig and Abraham Shockey, on the 19th day of June, 1800. The scire facias bears date the 27th of March, 1837; and, Lewis Craig having previously died, it was sued against his heirs and Abraham Shockey, and also against Thomas Blair, as tenant in possession. The defendants demurred to the scire facias, and also pleaded nul tiel record, on both which issues were joined; and on both, the Court, (having heard the evidence on the latter issue,) being of opinion in favour of the defendants, gave judgment for them. 'The plaintiff excepted to the decision of the Court against him, on the issue of nul tiel record; and, by his bill of exceptions, has spread upon the record the evidence by which, on his part, he attempted to sustain that issue. 'This evidence consisted, 1st, of the record of proceedings in the original action of ejectment by Walden's lessee vs. Craig, &c., and the judgment therein in favour of the plaintiff, rendered on the 19th of June, 1800, 'for his term, &c., yet to come and unexpired, together with his costs,' &c. The demise in the declaration on which this judgment is rendered was for a term of ten years, from the 15th of August, 1789. 'And, 2dly, the record of an entry made in the same case, on the 8th of May, 1824, in these words: to wit: 'On motion of the plaintiff in the above cause, by his attorney, leave is given to amend the declaration by extending the demise to fifty years; which is done accordingly. But executions not to go out before the 1st day of March next.' 'This, it is presumed, is all the evidence that can be judicially regarded as belonging to this case, or made part of it by the bill of exceptions, though it further appears, from what has been incorporated in the record, that, on the 2d June, 1812, an execution of haberi facias issued on the judgment in ejectment, and that afterwards, at the July term, 1813, it was quashed because it had been issued 'after the expiration of the demise in the declaration.' And it also appears that, in the year 1835, Thomas Blair, the tenant in possession, made application to the Court to annul and set aside the order of May, 1824, for extending the demise; and that this application was overruled by a division of the judges.' Mr. Crittenden for the defendant in error. If the decision of the Court was correct, either upon the demurrer to the scire facias, or upon the plea of nul tiel record, the judgment for the defendants was right. And they contended that the Court decided correctly on both the points. First, as to the demurrer.–The law of Kentucky having dispensed with the necessity of a declaration upon a writ of scire facias, it has been adjudged, in many cases, that the scire facias must answer the end of a declaration, and must set out all such facts as will warrant a judgment upon it. Dozier vs. Gore, 1 Littell's Rep. 164. 5 Littell's Rep. 59. Holland vs. Boulden, 4 Monroe, 148. And, in the case of Wood vs. Coghill, 7 Monroe, 601, it was decided by the Court of Appeals of Kentucky, that a scire facias, to revive a judgment in ejectment, must state the term yet to come, as laid in the declaration; for that, if the term has expired, there can be no writ of possession on the judgment. We insist, therefore, that the scire facias in this case, not stating the term as laid in the declaration in ejectment, nor any facts that showed its continuance, is fatally defective. And if we are permitted, upon the demurrer, to look beyond the scire facias, and to aid its want of averments by reference to the record of the judgment that it seeks to revive, and with which it is 'intimately connected,' (as is intimated in the case of Thompson, &c. vs. Dougherty's Heirs, 3 J. J. Marshall,) then it will appear that, in point of fact, the term for which that judgment was rendered had long before expired. For this defect, therefore, equally apparent on the face of the scire facias and of the judgment, the demurrer was correctly sustained. We furthermore submit to the Court, whether the lapse of time, being more than thirty-six years from the date of the original judgment to that of the scire facias, does not warrant that decision. A less period of time would, by the laws of Kentucky, have sufficed not only to cancel Walden's right of entry, but all his right and title to the land in contest. And it would seem, therefore, by strong analogy, that he ought not to be permitted, by the revival of a judgment so ancient, to escape those wholesome laws that secure long-continued possessions; and to assert, in this indirect mode, rights that could not be sustained in any other form of action. Secondly, as to the plea of nul tiel record.–By the issue on that plea, the plaintiff was bound to produce the record of a judgment for a term then (in the year 1837) unexpired. The judgment which he offered in evidence was rendered the 19th June, 1800, for a term of ten years, commencing the 15th August, 1789. It is needless to say more than that here there was, in the most material particular, a clear and obvious failure of proof on his part. And the only evidence by which it was attempted to supply this defect was the order of Court made, on the motion of the plaintiff, upon the 8th of May, 1824, giving him leave to amend his declaration by 'extending the demise to fifty years;' and which, as the same entry proceeds to state, 'is done accordingly.' This order cannot help the plaintiff, or have any effect, for two reasons: 1st. Because the amendment it gave leave to make was not in fact made, as the record shows; and the entry made in 1824, that if 'is done accordingly,' cannot be regarded, as it is apparent that amendment or extension of the demise was never made. 1 Monroe, 113. 2d, The order itself is a nullity, made ex parte on the plaintiff's motion, without notice to the defendants, or to any one interested to defend; and that, after the parties to the judgment in ejectment had been out of Court for more than twenty years. By the settled law of Kentucky, and by the uniform adjudications of her Courts it is now established, that they have no power to permit or authorize any such extension of the demise after judgment, without the assent of the opposite party. Owings vs. Marshall, 3 Bibb, 27.

The opinion of the court was delivered by: This Court, however, in the case of Walden et al. vs. Craig, 9 Wheat. 576, determined that the Federal Circuit Court for Kentucky might grant leave, after judgment, to enlarge the term stated in the declaration; and that, under the circumstances of that case, the motion for such leave ought to have been sustained. It is evident, from this decision, that it is not a matter of course, or of right, on the part of the plaintiff, to have such leave; and that the exercise of the power or discretion of the Court to grant it, depends on the circumstances of the case. Notice to the parties to be affected by such a proceeding, is just as necessary as it is in any other form of litigation; and that no judgment or judicial proceeding can bind or affect any man who has had no warning, notice, or opportunity of defence, is supposed to be a primary principle of justice and jurisprudence, that requires no illustration or authority for its support.

The motion and leave to amend, in this case, being without notice, and wholly ex parte, are null and without effect.

If amendments of this character are allowed, the whole object of the statute of limitations is defeated. If a party can lay by for such a length of time, and then restore himself to the same condition he was in when the suit was originated, by such an extension of the term, no statute can operate.

In England some leave must be obtained by the party from the Court, before a scire facias to revive a judgment can be sued out. It is a judicial writ. But this is not the law in Kentucky. Without an application to the Court, the writ may be sued out; but no one in Kentucky would, in the Courts of that state, assert the validity and operation of the scire facias sued out in this case.

Mr. Underwood, for the plaintiff in error.

He contended, that the extension of the demise in this case was fully within the power of the Court. Although it is considered that the defendants in the ejectment were constructively in Court when the order was made, yet their presence is not necessary. The Court exercise a discretion in the matter. They will not see the purposes of justice defeated, and they interfere always to prevent this.

The plaintiff had been prevented by the introduction of bills in Chancery, from obtaining any advantage from his judgment of recovery; the controversy between him and the other parties began in 1789, and by delays which he could not control, but for the just indulgence of the Court in extending the demise, all the benefits of his recovery in the ejectment would have been lost. Upwards of fifty years have passed; and should this Court affirm the judgment of the Circuit Court, the property to which the plaintiff has shown himself entitled to, at law and in equity, will be irretrievably lost to him.

The granting and the refusal of the extension of the demises in ejectment have been held by this Court to be within the discretion of the Court. The refusal of an extension has been decided by this Court, not to be the subject of a writ of error. It was not then competent for the Circuit Court, at a later period in this case, to interfere with the action of the Court in a matter exclusive in its jurisdiction and power.

In Walden vs. Craig, 9 Wheaton, this Court decided that the demises in a declaration might be extended; and held, that no writ of error would lie on this having been done in the Circuit Court. In this case, if notice of the motion to the Court to extend the demise was necessary, it was given. The presumption always is, that the requisites to a proceeding by a Court have been complied with.

A printed argument, by Mr. Wickliff, for the plaintiff in error, was handed to the Court.

Mr. Justice M'LEAN delivered the opinion of the Court.

These cases are brought before this Court, from the Circuit Court of Kentucky, by writs of error.*fn1 *

The plaintiff in error, who was the plaintiff in the Circuit Court, issued two write of scire facias, to revive the judgments rendered in the above cases the 19th of June, 1800, against Shockey and Rose, the original defendants, and the heirs of Craig. Alias writs were issued, and on the first and second writs the marshal returned served on several of the heirs named; and that Shockey and Rose were deceased.

In both cases, the defendants demurred to the writs of scire facias, and also pleaded nul tiel record. Issue being joined, the Court gave judgments for the defendants on both issues; to revive which judgments these writs of error were prosecuted.

A bill of exceptions spreads upon the record the evidence that was before the Court on the ...


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