# Conery v. Rotchford, Brown & Co.

> Supreme Court of Louisiana · April 15, 1878 · 30 La. Ann. 692

URL: https://www.frixlaw.com/law-library/cases/7191553

## Case

- **Full name:** Edward Conery v. Rotchford, Brown & Co.
- **Court:** Supreme Court of Louisiana
- **Decided:** April 15, 1878
- **Citations:** 30 La. Ann. 692
- **Precedential status:** Published
- **Opinion:** On rehearing by Manning
- **Judges:** Deblanc, Egan, Manning
- **Cited by:** 11 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7191553

## Opinion text

On Rehearing.
Manning, C. J.
I am constrained to dissent from this judgment also, because I think the plaintiff is entitled to a revival of the original judgment as prayed, and as this case overturns our jurisprudence on this question, I will once for all give the reasons for my construction of the Act of 1853.
I base my construction of it both upon reason and authority.
Upon reason, by ascertaining its true intent and meaning in that way, pointed out by the Great Commentator as one of the surest and safest means of learning it. “ The most universal and effectual way of discovering the true meaning of a law, says Sir Wm. Blackstone, when the words are dubious, is by considering the reason and spirit of it, or *699 . the cause which moved the legislator to enact it, for when this reason ceases, the law itself ought likewise to cease with it.” 1 Com. 61. And in another place he says,.it is useful and often necessary, in order to arrive at the true meaning of a new law, to ascertain what was the defect in the old law that had to be remedied, and to remedy which the new laW was made. And again, a non-enacting part of a law, as the preamble, is often called in to help the construction of an act of parliament.
How much more shall the title of a law be called in to help the construction of one of our statutes, when by express constitutional command, every law can embrace but one object, and that object must be expressed in its title. . Const. 1852 art. 115. That was the organic law in .■force when in 1853, the legislature passed ‘an Act relative to the prescription of judgments.’ Acts, p. 250.
The old law was, that judgments were imprescriptible, or to speak more accurately, no fixed time had been set for the prescription of a judgment eo nomine. The object of the new law was to fix a time — to establish with certainty a period, the lapse of which would affect judgments as notes, or other obligations 'were affected by the lapse of time— and thus to introduce a new rule or principle into our law quoad judgments. If it had then been contended, under the Act, that one might attack a judgment because of alleged nullities — that you might inquire whether the judgment ought to have been rendered — that you might shew a defective citation, or an illegal consideration for the contract which the judgment gives effect to, or that a document, such as a power .of attorney, in evidence on -the trial when that judgment was rendered, was void — or that any other evidence then used was inadmissible, or that all of it together was insufficient — if any attempt to annul the oi’iginal judgment for any of these, or other like reasons, had been made, the answer would have been that the object of the Act is not the annulment of judgments — that it can not embrace more than one object, which is the prescription of judgments, and that object is expressed in its title, and I can not perceive why this objection, which would have been unanswerable then, has lost, its force from the mere incorporation of this Act in the Revised Statutes without its title, as are all other statutes.
If the intent of the legislator had been to provide by this act a new mode of annulling judgments, or a new mode of revising or reversing them, its title would have been, ‘an act relative to the prescription of judgments, and to the manner in which they may be annulled, and to -provide a mode of reversing them otherwise than by appeal.’ The Code of Practice had definitively set out the four modes by which judgments could be revised, set aside or reversed, viz, by a new trial, by an appeal, by an action of nullity, and by rescission, art. 556. And it had *700 also defined the causes for which this third mode might be employed, arts. 605 — 7. But by construing this act of 1853, so as to let in by way of cause shewn to a demand for revivor, the defences that either were not made, or were unsuccessfully made, to the original action, is not only to construe it as providing a new and additional mode of annulling a judgment, but also as providing and authorizing a method of reversing a judgment, which, until this case, was supposed could only be done on an appeal.
What then is the justification of this construction? My brethren rest it upon the clause — unless the defendant shew good cause why the judgment should not be revived. What is the use of enacting that a judgment may be revived unless good cause be shewn why it should not be, if in the proceeding for its revival you are not permitted to shew all good causes ?
The first answer to this question, which contains as in a nutshell the whole argument for the construction of the statute now adopted, is that already mentioned, viz, that you must construe the statute by reference to the state of the law existing at, and the circumstances surrounding and attending its passage, and when these so manifestly and unerringly point to a particular and special thing as the sole object of the legislature in its enactment, you can not, consistently with the undisputed rules of construction, apply it to other objects. And the force of this consideration is redoubled, and the point or idea, or principle stands out in bolder relief when it is perceived that disregard of it revolutionizes the whole theory of legal construction, and displaces the order and regularity and gradation of judicial proceedings, for when was it ever broached before, that where a party refused to take the next step after a judgment had wrongfully condemned him, viz to appeal for its reversal, after a new trial had been denied him; and when he neglected or abandoned his remedy by an action of nullity, that he could, under cover of a statute made for another purpose, accomplish what until then could be accomplished only by an appeal or by an action of nullity.
But another answer is, that analogy and a comparison of other systems of law in the parts corresponding to this novel feature in our own, shew us what this act means.
At common law, writs of execution must be sued out within a year and a day after the judgment is entered, otherwise the court concludes prima facie that the judgment is satisfied and extinct. But, as provided by statute 13 Edw. 1 . c. 45, a writ of scire facias will be granted after that time has passed, “ for the defendant to shew cause why the judgment should not be revived.” I have quoted the exact language.of Blaekstone in this last sentence, 3 Com. 421, and the reproduction of *701 these identical words in our statute of 1853, is not an accidental circumstance. The process mentioned in the statute equally well displays the kinship of our act. It would seem that it did not even contemplate a suit, but only a ‘citation’ to the party to shew cause. These indicia shew that, when the legislature had in view the application to judgments in our system of those rules, which had obtained elsewhere, and for the first time created for them a presumption of payment which until then it ignored, and was preparing a law to give effect to this presumption, that it sought guidance from the parallel provision of a system of law, in use in the adjoining and other States, and adopted the same, or a kindred, proceeding here to effect what had been long effected there, and no one will argue that because it did not call it a scire facias, therefore it is not substantially the same thing. The whole system of recording evidences of title to property is of American origin, and in most of the States it is called ‘ registering,’ and the officer who performs that duty is called a ‘Register,’ but it would scarcely be argued that because we call him ‘ Recorder,’ and his work ‘ recording,’ that there is any difference in the nature of the functions.
I have said that I based my construction of this Act upon authority as well as reason.
1863 is the first and earliest date when any judgment could be prescribed in this State, and the first suits for revival were therefore commenced a year or two before, and hence we find no decisions in this State upon the statute we are considering, until the resumption of this court’s business after the close of the war. In all of the decisions, without exception, until the present case, the doctrine has been held and maintained that the sole object of the statute of 1853 was to apply prescription to judgments, and to specify and formulate the manner of averting it. We held in an unreported case at Monroe last summer, where the defendant attempted to shew for cause why a judgment should not be revived, that the consideration of the note for which it was rendered was illegal, that he could not be permitted to go into that defence, and this was in harmony with McStea v. Rotchford, 29 Annual, 69. which was itself but a reiteration of the principle previously adjudicated, but perhaps not till then so sharply defined. Since the opinion in this case was read on the first hearing, another case presented the question of revival of a judgment which had been rendered against one defendant upon a citation addressed to, and served upon another defendant, and the majority of the court held this want of citation could be inquired into in the suit for revival. These two cases are the oply departure from the rule established by all the previous decisions.
I think the solitary question that a court can consider in an action of revivor under this statute, is — was the judgment rendered, the revival *702 of which is sought; and where the original plaintiff brings the action for revival, the only evidence necessary to entitle him to a judgment is a certified copy of the original judgment rendered in his favor.
If that judgment ought never to have been rendered, — if it contains extrinsic or intrinsic vices which destroy its legal existence — the party, against whom it is rendered, may have it reversed on appeal, or may annul it by an action, and to these methods alone he is remitted for relief. He can not avail himself of this peculiar proceeding, provided by a special statute for a special purpose, to accomplish what other and general laws have afforded him ample means and opportunity to do.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7191553. Public record. Not legal advice.