Vanderheyden v. Gardenier
New York Supreme Court
A MOTION was made, by the defendant, to set aside a judgment on a scire facias, and all subsequent proceedings, for irregularity. , . The original judgment was docketed the 31st of December, .1805, and the defendant’s attorney could find no evidence of the proceedings on scire facias to revive the judgment, except the docket of the judgment on scire facias on the 31st of August, 1811. The plaintiff, however, proved that a writ of scire facias, with the return of scire feci…
Read the full summary
A MOTION was made, by the defendant, to set aside a judgment on a scire facias, and all subsequent proceedings, for irregularity. , . The original judgment was docketed the 31st of December, .1805, and the defendant’s attorney could find no evidence of the proceedings on scire facias to revive the judgment, except the docket of the judgment on scire facias on the 31st of August, 1811. The plaintiff, however, proved that a writ of scire facias, with the return of scire feci endorsed by the sheriff returnable in Novemher sessions, 1808, was on file in the clerk’s office, and that on the 19th of…
1Per curiam
If the plaintiff who sues out a scire facias to revive a judgment, does not proceed upon it within a year and a day, it'is a discontinuance of it, aud the plaintiff must commence by scire facias de novo. So, if he does not sue out execution on a judgment on scire facias within a year, he must revive it again, (Impey’s K. B. 314. Tidd’s K. B. 1009.) This case comes within the rule; for between the entry of the default, and the entry of the judgment, there was an interval of two years and five months. This amounted to a discontinuance of the proceedings, and the subsequent entry of the judgment…
2Cited by2 opinions
- Collins v. McBlairDistrict of Columbia Court of Appeals · 1907
- Giddings v. Whittlesey & ChittendenCircuit Court of the 2nd Circuit of Michigan · 1871