Reid v. Bristol

86 S.E.2d 417 (1955)

241 N.C. 699

P. M. REID v. W. A. BRISTOL and Mabel L. Bristol.

No. 236.

Supreme Court of North Carolina.

March 23, 1955.

*418 J. F. Jordan, Wilkesboro, for plaintiff, appellant.

Scott, Collier & Nash and Zeb V. Long, Statesville, for defendant, appellee.

BOBBITT, Justice.

As indicated above, this appeal does not concern the status of the judgment of 9 October, 1936, in favor of the late P. M. Reid and against Mabel L. Bristol. However, upon the record before us, it would appear that the lien thereof on real property, if any, has ceased to exist, G.S. § 1-234, Lupton v. Edmundson, 220 N.C. 188, 16 S.E.2d 840; and further, that the time for the issuance of execution thereon to enforce payment has expired. G.S. § 1-306.

Under former statutory provisions, last codified as sections 667 and 668 of the Consolidated Statutes of 1919 (superseded by G.S. § 1-306), the life of a judgment, solely for the purpose of issuing execution thereon, might be prolonged beyond the expiration of ten years from the date of rendition; and, when the judgment became dormant by failure to issue execution within three years from rendition or from issuance of a prior execution thereon, the judgment creditor, by notice to show cause, scire facias, and upon satisfactory proof, might obtain leave to revive the judgment and issue execution thereon. McIntosh, N.C.P. & P. (1929), 834-835; Barnes v. Fort, 169 N.C. 431, 86 S.E. 340. Under this procedure, no judgment was contemplated or permitted, but only the revival of the original (dormant) judgment for one purpose, namely, the issuance of execution thereon.

Reference to the former practice discussed above is made solely because cases cited by appellant were decided in relation thereto. But that practice is now obsolete. Since the enactment of ch. 98, Public Laws of 1935, now codified as the proviso in G.S. § 1-306, "no execution upon any judgment which requires the payment of money * * * may be issued at any time after ten years from the date of the rendition thereof." *419 The concept of a dormant judgment has no place under present statutory provisions. It is of interest only because a knowledge thereof is necessary to understand the earlier decisions and statute.

During a period when sec. 14 of the C.C.P. (1868) was in effect, it was necessary to obtain leave of court before commencing such independent action on a judgment. Warren v. Warren, 84 N.C. 614. An action on a judgment was recognized as entirely different from a motion to revive a dormant judgment for the purpose of issuing execution thereon, since both remedies could be pursued at the same time. McDonald v. Dickson, 85 N.C. 248. But this statute was not brought forward in the Code of 1883; and, since 1883, such action may be brought as of right. Dunlap v. Hendley, 92 N.C. 115.

As stated by Pearson, C. J., in Parker v. Shannonhouse, 61 N.C. 209: "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." Sec. 109, ch. 31, Rev.Code of 1854, by its terms, treats of procedure, by scire facias, to obtain leave to issue execution on a dormant judgment; and sec. 5, ch. 1, Ordinance of 1866, provides "that dormant judgments shall only be revived by actions of debt, and every scire facias to revive a judgment shall be dismissed on motion." Be that as it may, if in ante-bellum days it was ever permissible, by scire facias, to obtain a judgment on a judgment, it was held in Parker v. Shannonhouse, supra, that such was not the law subsequent to the Convention of 1866. Since then, if not before, the only procedure whereby the owner of a judgment may obtain a new judgment for the amount owing thereon is by independent action.

Such independent action upon a judgment must be commenced by the issuance of summons, filing of complaint, service thereof, etc., as in case of any other action to recover judgment on debt. And, it is expressly provided that the period limited for the commencement of such action upon a judgment is ten years "from the date of its rendition." G.S. § 1-47. Rodman v. Stillman, 220 N.C. 361, 17 S.E.2d 336; McDonald v. Dickson, supra. As to limitation applicable to action on judgment rendered by justice of the peace, see G.S. § 1-49.

"A void judgment is a nullity, and no rights can be based thereon; it can be disregarded, or set aside on motion, or the court may of its own motion set it aside, or it may be attacked collaterally." McIntosh, supra, 735; Lewis v. Harris, 238 N.C. 642, 78 S.E.2d 715; State ex rel. Hanson v. Yandle, 235 N.C. 532, 70 S.E.2d 565.

In the matter now under review, there was no summons, no complaint, in short, no independent action by said administratrix against Mrs. Bristol. It follows that the clerk's order of 24 September, 1946, purporting to revive the late P. M. Reid's judgment of 1936 in the sense of rendering a new judgment for the debt, if any, owring to said administratrix by Mrs. Bristol thereon is void for lack of jurisdiction. The judgment of the court below so declared. It is affirmed.

Affirmed.

BARNHILL, C. J., took no part in the consideration or decision of this case.