Walker v. Turner , 203 Ga. 525 ( 1948 )

1. A dormant judgment may be revived by suit or scire facias brought within three years from the date it becomes dormant, but where such a proceeding is brought after the expiration of the three-year period, the court is not without jurisdiction of the subject-matter. That the suit is barred is a matter of defense which the defendant must plead. Milner v. Neel, 114 Ga. 118 (39 S.E. 890).

2. A judgment obtained by revival of a dormant judgment by scire facias in the name of the plaintiff as transferee, instead of in the name of the original plaintiff, suing for the use of the transferee, as required by the Code, § 110-1009, can not be treated as a void judgment, unless it appears that the court rendering the judgment did not have jurisdiction.

3. A judgment for a larger amount than that sued for is not for that reason void. It is a mere irregularity.

No. 16181. APRIL 13, 1948. On January 3, 1948, W. W. Turner and Mrs. Ellie Turner Cofer filed an equitable suit in Wilkes County Superior Court against Lawson E. Thompson and Frank T. Walker to cancel a judgment and for other equitable relief. Their petition alleged: Lawson E. Thompson obtained a judgment in the City Court of Washington (Wilkes County) against W. W. Turner on June 1, 1930, for $105 principal, $12.98 interest, $11.79 attorney fees, and for costs of suit. An execution issued and was entered on the general execution docket in the office of the Clerk of the Superior Court of Wilkes County on June 1, 1931. The judgment became dormant on June 1, 1937, and the right to sue on the judgment or to revive it by scire facias expired on June 1, 1940. The City Court of Washington was abolished prior to July 12, 1943, and all matters over which it had jurisdiction were vested in the Superior Court of Wilkes County. On the last-mentioned date Frank T. Walker as transferee filed a proceeding in the Superior Court of Wilkes County to revive the judgment which Lawson E. Thompson had recovered against W. W. Turner on June 1, 1930, and scire facias was issued and served. W. W. Turner filed no defense, and on August 2, 1943, a pretended judgment of revival was rendered for $105 principal, $112 interest, $22.70 attorney's fees, and for costs of suit, with direction that an execution issue accordingly. W. W. Turner had no notice or knowledge of the revived judgment, because it did not follow the pleadings and for that reason it was illegal and void. The judgment was also a nullity, because Frank T. Walker as transferee had no right to maintain a proceeding in his name to revive the judgment, and because his petition for revival showed on its face that any right to revive the original judgment was barred by the statute of limitations. Lawson E. Thompson knew at the time when he as counsel for Walker filed the proceeding for revival of the judgment of June 1, 1930, that it was dormant and any right to revive it was barred, and for that reason the judgment of revival was a fraud on the court and the plaintiffs. The defendant Thompson, as counsel for the defendant Walker, had caused an execution, of which Mrs. Ellie Turner Cofer had no actual knowledge, to be levied on certain described lands which she purchased from W. W. Turner. The revived judgment is a cloud on her title, and being void should be canceled.

The petition prayed that the defendants be enjoined from enforcing the execution which had issued on the revived judgment of August 2, 1943; that the revived judgment, being void, be canceled as a cloud on title; and for general relief.

The court overruled all of the grounds of demurrer, general and special, and the exception here is to that judgment.

In the brief for the defendants in error it is stated that this case presents for decision three questions, namely: (1) Since it appeared on the face of the petition that at the time the scire facias issued the judgment sought to be revived was more than ten years old, did the court have jurisdiction to issue an order reviving the judgment? (2) Could the court revive a judgment in the name of the transferee only on a writ of scire facias which did not proceed in the name of the original plaintiff for the use of the transferee? And (3) since this was a proceeding by scire facias in which the sole prayer of the petition was to revive a judgment, was a judgment rendered by the court for a sum different from that in the original judgment a valid judgment, or was it void? It is conceded by the plaintiffs in error that a ruling on these questions by this court will determine whether or not the trial judge properly disposed of the grounds of general demurrer. Since these are the controlling questions in the case, we shall dispose of them in the order stated. 1. "A dormant judgment may be revived by scire facias or sued on within three years from the time it becomes dormant." Code, § 110-1002. In the instant case a proceeding was filed and scire facias issued on July 12, 1943, to revive a judgment which was rendered June 1, 1930. Clearly a right to revive the judgment was barred by the statute, but it is now too late to raise that issue for the first time. It should have been raised by an appropriate plea to the scire facias. In Helms v. Marshall, 121 Ga. 769,770 (49 S.E. 733), this court held: "A scire facias to revive a dormant judgment is in the nature of a suit, and the defendant is bound to plead all matters of defense that he has, just as he would in an ordinary suit, or else he will be after the judgment concluded as to any defense which could have been made the subject-matter of a plea." And in Milner v. Neel,114 Ga. 118 (supra), which we are requested to review and overrule, this court in 1901 said: "So far as we have read, no court has ever held a judgment void because it was rendered upon a cause of action which had been barred before the commencement of the suit. If a person is sued upon a cause of action which is barred, he can not fail or refuse to attend the court and allow a judgment to go against him and afterwards claim that the judgment is void. It is his duty to appear at court and plead the statute of limitations, or demur to the petition if the bar appear on the face thereof." The ruling in the Milner case is, we think, a correct statement of the law. It follows a principle of law announced by this court in 1881 in Lewis v. Allen, 68 Ga. 400, and the request that it be now review and overruled is denied.

2. "Scire facias to revive a judgment is not an original action, but the continuation of the suit in which the judgment was obtained." Code, § 110-1005. It is contended in the present case that the judgment of revival is void because the petition for revival was brought and the scire facias issued in the name of the transferee and not in the name of the original plaintiff, suing for the use of the transferee, as required by section 110-1009 of the Code, which provides: "The scire facias, when the judgment has been transferred, shall issue in the name of the original plaintiff for the use of the transferee." We can not agree that the judgment in the present case is for this reason void. Section 81-1307 declares: "When several plaintiffs shall sue jointly, the petition may be amended by striking out the name of one or more of such plaintiffs; and when it shall become necessary for the purpose of enforcing the rights of such plaintiff, he may amend by substituting the name of another person in his stead, suing for his use." While it is true in the present case that the petition for revival was defective, since it should have been brought in the name of the original plaintiff suing for the use of the transferee, yet this, being an amendable defect to which there was no demurrer or other objection upon the trial, was cured by the verdict. Code, § 110-705; Stowers v. Harris,194 Ga. 636, 638 (22 S.E.2d 405); Georgia Securities Co. v.Ward, 66 Ga. App. 182 (17 S.E.2d 605).

In Chapman v. Taliaferro, 1 Ga. App. 235 (58 S.E. 128), Judge Russell, who was afterwards Chief Justice of this court, said: "A judgment obtained by revival of a dormant judgment by scire facias in the name of the plaintiff as transferee instead of in the name of the original plaintiff, suing for the use of the transferee, as required by the Civil Code, § 5384 [Code, § 110-1009], can not be treated as a void judgment unless it appears that the court rendering such judgment did not have jurisdiction." It is not insisted in the case at bar that the court did not have jurisdiction of the parties and the subject-matter; and for the reasons stated by Judge Russell in the Chapman case, the contention made in this assignment of error is without merit.

3. It is also insisted that the judgment obtained by the revival of the dormant judgment is void, because it was for a larger amount of interest and attorney's fees than the original judgment. This contention is also without merit. It has often been held by this court and the Court of Appeals that a verdict and judgment for an amount larger than that sued for is not for that reason void, but a mere irregularity. Buice v. Lowman c.Mining Co., 64 Ga. 769 (2); Blain v. Hitch, 70 Ga. 275 (3); Philmon v. Marshall, 116 Ga. 811, 812 (43 S.E. 48);Johnston v. Sheppard, 22 Ga. App. 206 (95 S.E. 743). The record shows that the original plaintiff, by the judgment of June 1, 1930, recovered $12.98 as interest and $11.79 as attorney's fees, while the transferee, by the judgment obtained in the revival of the dormant judgment, recovered $112 as interest and $22.70 as attorney's fees. Counsel for the plaintiffs in error explain this apparent discrepancy by stating that the difference in the amounts recovered represents accrued interest on the principal debt and the attorney's fees, which became a part of the principal, from the date of the original judgment to the date of the judgment of revival. A calculation of the interest which the original plaintiff and his transferee would legally be entitled to collect demonstrates that the plaintiff Turner has not been injured by the irregularity here complained of, if in fact it can be said that the revived judgment was for this reason irregular. Direction, however, is given that all interest which may legally accrue on the revived judgment be computed from the date of revival.

From what has been said in the three preceding divisions, it follows that the judgment was not void, and that the petition failed to state a cause of action for any of the relief prayed. Therefore the court erred in overruling the general demurrer.

(a) Since the petition should have been dismissed on general demurrer, it is not necessary to pass on the several grounds of special demurrer.

Judgment reversed, with direction. All the Justices concur.