Scire facias to revive a judgment is not an original action but is the continuation of the action in which the judgment was obtained.
(Orig. Code 1863, § 3524; Code 1868, § 3547; Code 1873, § 3606; Code 1882, § 3606; Civil Code 1895, § 5380; Civil Code 1910, § 5975; Code 1933, § 110-1005.)
Law reviews.- For note discussing the procedure for the issuance and amendment of a writ of execution, see 12 Ga. L. Rev. 814 (1978).
JUDICIAL DECISIONS
Revival proceedings are designed to protect not only the relationships and rights of plaintiffs, but also those of the defendants. American Nat'l Bank v. Hodges, 41 Ga. App. 717, 154 S.E. 653 (1930).
Venue of scire facias proceeding.
- Scire facias to revive a dormant judgment must be brought in the superior court of the county in which the original judgment was obtained. Oxford v. Generator Exch., Inc., 99 Ga. App. 290, 108 S.E.2d 174 (1959).
Defenses to scire facias must be pled.
- Scire facias to revive a dormant judgment is in the nature of a suit and the defendant is bound to plead all matters of defense that the defendant has, just as the defendant would in an ordinary suit. Lewis v. Allen, 68 Ga. 398 (1882).
Compliance with O.C.G.A.
§ 9-12-63 required. - After conceding that the judgment creditor allowed a judgment against a judgment debtor to become dormant, the trial court did not err in denying the creditor's petition for a writ of scire facias upon the creditor's failure to comply with the procedural filing requirements of O.C.G.A. § 9-12-63 and service upon the judgment debtor was not properly effectuated. Popham v. Jordan, 278 Ga. App. 254, 628 S.E.2d 660 (2006).
Defenses to scire facias cannot go behind the judgment.
- It is a good defense to a scire facias that the defendant was not served as required and did not in any way appear in the original suit. When the record of a court, whether because lost or otherwise, is silent as to service, and a duly entered judgment appears thereon, it will be presumed, until the contrary appears, that service under this section was made on the defendant; but the defendant is, as a general rule, competent to testify in rebuttal of this presumption. Weaver v. Webb, Galt & Kellogg, 3 Ga. App. 726, 60 S.E. 367 (1908).
Inquiry into merits of original case on writ to revive it.
- In no case, and under no circumstances, can the merits of an original judgment be inquired into by the defendant on a writ to revive the judgment. McRae v. Boykin, 73 Ga. App. 67, 35 S.E.2d 548 (1945), cert. denied, 328 U.S. 844, 66 S. Ct. 1024, 90 L. Ed. 1618 (1946).
When a defendant is served, and appears and pleads in the original action, the defendant cannot inquire into the merits of the original judgment, on a writ to revive the judgment. It is not error to sustain a demurrer (now motion to dismiss) and strike the defendant's answer in such a proceeding. McRae v. Boykin, 73 Ga. App. 67, 35 S.E.2d 548 (1945), cert. denied, 328 U.S. 844, 66 S. Ct. 1024, 90 L. Ed. 1618 (1946).
Res adjudicata applies to scire facias proceedings.
- On the general principle of res adjudicata, which applies equally to proceedings by scire facias as to any other action or suit, and on the further ground that this method of reviving a judgment is a supplementary step in the original action, the defendant is absolutely precluded from going behind the judgment and offering in defense to the scire facias any matter which existed before the rendition of the original judgment and which might have been presented in the former proceeding. McRae v. Boykin, 73 Ga. App. 67, 35 S.E.2d 548 (1945), cert. denied, 328 U.S. 844, 66 S. Ct. 1024, 90 L. Ed. 1618 (1946).
Discharge in bankruptcy is a proper defense to scire facias to revive a judgment, and if not set up the defendant will be concluded by a judgment of revival. Thomas v. Towns, 66 Ga. 78 (1880).
Lien revived by scire facias.- Lien revived by scire facias only attaches as of the date of the revival. Beckham v. A & W Oil & Tire Co. (In re Beckham), Bankr. (Bankr. S.D. Ga. Sept. 15, 2004)(Unpublished).
Consideration of record.
- Upon a petition for scire facias to revive a dormant judgment, wherein the plaintiff alleges that the judgment was rendered in a named cause in the same court, a transcript of which is not attached as an exhibit, but full reference to the cause is prayed, and the defendant by the defendant's pleadings invokes a construction of the record in aid of the defense, the defendant cannot complain that the court considered such record in determining whether the judgment was void for uncertainty, or whether it was final or interlocutory. Moody v. Muscogee Mfg. Co., 134 Ga. 721, 68 S.E. 604, 20 Ann. Cas. 301 (1910).
Effect of scire facias proceedings on judgment not dormant.
- Proceeding by scire facias to revive a judgment charged, and believed to be dormant, though it was not so in point of fact, did not prevent the judgment from becoming dormant. Vanderberg, Bonnett & Co. v. Threldkeld, 61 Ga. 16 (1878).
Amendable defect not objected to curable by verdict.
- When the petition for revival of a judgment was defective, since the petition should have been brought in the name of the original plaintiff suing for the use of the transferee, this, being an amendable defect to which there was no demurrer (now motion to dismiss) or other objection upon the trial, was cured by the verdict. Walker v. Turner, 203 Ga. 525, 47 S.E.2d 504 (1948).
Effect of permitting revival of judgment against one of several defendants.
- To permit a plaintiff to have revival of judgment against one only of several defendants might destroy the right of the defendant, thus made liable for the whole to contribution from the codefendants, and a surety of the indemnity as well, if the defendant has paid the obligation of the principal, and so by nonaction and laches a judgment creditor might deliberately defeat contribution or indemnity. American Nat'l Bank v. Hodges, 41 Ga. App. 717, 154 S.E. 653 (1930).
Cited in Stahle v. Jones, 60 Ga. App. 397, 3 S.E.2d 861 (1939); Trust Co. v. Mortgage-Bond Co., 203 Ga. 461, 46 S.E.2d 883 (1948).
RESEARCH REFERENCES
Am. Jur. 2d.
- 46 Am. Jur. 2d, Judgments, §§ 393, 394.
C.J.S.- 49 C.J.S., Judgments, § 867.