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HODGES VS. SEV1ER. 385 in any way, because the presumption from lapse of time is, that the judgment has been executed or satisfied. In the case of Mullikin vs. Duvall, 7 Gill & Johns., 358, the Court of Ap- peals say, that a suspension of final process on a judgment for three years, in this state, renders a scire facias necessary be- fore farther process can be obtained upon it. And on the next page, it is said, "after the year and a day (in England) the law presumes the judgment to be executed, or satisfied, and, there- fore, it is that the plaintiff is put to his scire facias to revive the judgment, to which the defendant may appear and plead in the same manner as to an action founded on an original writ." The judgment of these petitioners, then, as it now stands, must be presumed to be satisfied, or at all events, is not in a condition to be enforced at law, and, therefore, it is not per- ceived upon what principle they can in this court contest with the complainant the question of the proper application of the money arising from the sale of the mortgaged premises in this case. It is not for this court to say, whether the judgment will or will not ever be revived, and if by an order of this court the proceeds of the property sold by the trustee, should be ap- plied to its payment, and the County Court should hereafter, in the case growing out of the scire facias, give judgment for the defendant, Sevier, a very great wrong would be done. It is the opinion of the Chancellor, that waiving the other questions, drawn into discussion by the counsel on either side, a sufficient reason has been given for refusing the prayer of the petition, which must consequently be dismissed. Note by Reporter.—The subsequent proceedings in this case, are reported in the case of Duvall vs. Speed, 1 Md. Ch. Deci- sions, 229. Though no opinion was filed in the case of Mur- phy vs. Cord, 12 Gill & Johns., 182, referred to by the Chan- cellor, in the above opinion, yet when that case was cited in the argument of the case of Doub vs. Barns et al, 4 Gill, 11, Judge Chambers said, it was the decision of the Court of Appeals in that case, and if an opinion had been filed would have been ex- pressed. 32* |
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Reports of Cases in the High Court of Chancery of Maryland 1846-1854
| Volume 200, Volume 4, Page 385 View pdf image (33K) |
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