People v. Corey & Briggs — 19 Wend. 633

Majority

p. 633

The People vs. Corey & Briggs.

ALBANY,

Feb. 1839.

Headnote

A scire facias sued out in a court of common pleas, to obtain execution up. on a judgment rendered in that court and remaining there, cannot be re. moved by certiorari into the supreme court.

Motion to quash a certiorari sued out to remove a cause Feb-1839from a court of common pleas into this court. A judgment was obtained in the Yates common pleas in the name of The People against the defendants, and subsequently a scire facias to obtain execution upon that judgment was sued out returnable in the same court. The defendants filed in the court of common pleas a certiorari to remove the cause into this court, and a motion was now made to quash the writ.

H. Welles,

for the people, insisted that the scire facias sued out in this case was but a continuation of the original suit, and inasmuch as the record in that suit remained in the Yates common pleas, that the proceeding by scire facias to obtain execution of the judgment could not be removed by certiorari into this court.

S. Stevens,

contra, contended that the scire facias was a new action, and like all other actions allowed to be removed might be removed by certiorari into this court; that it was a new action, he said, was evident from the well established rule, that a new warrant of attorney is necessary to the bringing of a scire facias to revive a judgment.

By the Court,

It is true that a new warrant of attorney is necessary to the bringing of a scire facias to revive a judgment, 2 Tidd’s Pr. 983 ; 7 T. R. 337; Bing, on Ex. 126, n. (y;) 6 Johns. R. 108; but it is nevertheless for many purposes regarded as the continuation of the former suit. Ibid, and 2 Saund. 71, a, n. 4. Indeed, it is so decided in several cases ; 1 T. R. 388; 6 id. 282, 366. Upon a recognizance it is an original proceeding.

p. 634

Tidd’s Pr. 983. The writ must be sued out of the same court where the judgment was given, if the record remain there; or if it has been removed, out of the court where the record *s Mr Tidd says, that when it is brought in the K. B. upon a judgment of an inferior court, it must appear in the writ itself how the judgment came there, whether by certiorari or writ of error, because the execution is different: if by certiorari, the sci. fa. should show the particular limits of the inferior jurisdiction, and pray execution within those limits. Tidd’s Pr. 1007, 8. So intimately connected are the two proceedings, that an agreement in the former not to bring a writ of error operates to bar one in the latter. 1 T. R. 388. So the costs of a sci. fa. after bankruptcy, to revive a judgment obtained before bankruptcy, relate back to the original judgment, and are recoverable under the commission. 6 T. R. 282. So the proceeding by scire facias against bail must be in the same court where the record in the original action remains ; and it was accordingly holders where a cause had been carried back from the K. B. by procedendo to an inferior court, where judgment was subsequently obtained and a scire facias sued out against the bail, who thereupon removed the proceedings into the K. B. by habeas corpus, that as the original cause had already been sent back, the other ought to follow it, and it was accordingly remanded. 6 T. R. 366.

All these principles and cases clearly indicate that the proceeding by scire facias to revive a judgment, should be had in the court where the record in the original action remains; that it is but the continuation of that suit—an incident—and must follow the original cause. It is not an action within the meaning of the term in the statute, which may be removed by certiorari. 2 R. S, 389, § 4.

Motion granted.