Parker v. Shannonhouse, 61 N.C. 209, 1 Phil. 209 (1867)

Jan. 1867 · Supreme Court of North Carolina

61 N.C. 209, 1 Phil. 209

DAVID PARKER v. BENJAMIN J. SHANNONHOUSE.

'The clause of the-Ordinance of the Convention of June, 1866, entitled “An Ordinance to change the jurisdiction of the courts,” &e., which provides •that no scire facias should he thereafter issued to revive dormant judgments, and that every scire facias then pending should he dismissed at defendant’s cost, is not unconstitutional.

Motion to dismiss a scire facias, before Warren, J., at Fall Term, 1866, of the Superior Court of Pbrquihons.

The plaintiff, on the 23d April, 1866, sued out a scire facias to May Term of the County Court, to revive a dormant judgment in that court. Pleas were entered at the return term, and at August Term, upon motion of the defendant’s counsel, the court gave judgment dismissing the scire facias, and the plaintiff appealed to the Superior Court. In that court his Honor overruled the motion to dismiss and gave judgment that a procedendo issue to the County Court. The defendant, thereupon, appealed to this court.

Smith, Yates and W. A. Moore, for the plaintiff.

Bragg, for the defendant.

Pearson, C. J.

We think his Honor erred in overruling the motion to dismiss the scire facias. -

The motion presented the question of the constitutionality of the ordinance of the Convention — that no scire facias shall thereafter be issued to revive a dormant judgment, and every scire facias then pending in court shall be dismissed at the cost of the defendant. Without reference to the wisdom or policy of this enactment, the naked question is, Had the Convention power so to ordain ?

We find by reference to the books that, at common law, the remedy of the creditor was an action of debt on former judgment. The Statute, 13 Edw. I, ch. 15, re-enacted in the Rev. Code, ch. 31, sec. 109, gives to the creditor an additional remedy by scire facias. The effect of the ordinance is to repeal the Statute, 13 Edw. I, and leave the creditor to his common law remedy. This does not impair the obligation of the contract, but simply takes from the creditor the additional remedy provided by statute, and leaves him to his common law remedy; so the ordinance does not impair the obligation of the contract or deny a remedy. This the Convention, which represented the people as if assembled “ in campis,” had the power to do.

There is error.

Per Curiam. Judgment of the court below reversed; and judgment here that the scire facias be dismissed at defendant’s costs.