Lavell v. McCurdy's Ex'ors

Citations

• 77 Va. 763
• 1883 Va. LEXIS 113

Syllabus

<p>1. Scire Facias-The mandate of the statute (Code 1873, chapter 166, section two,) is, that process from any court, whether original, mesne, or final, except a summons for a witness, shall be returnable within ninety days after its date. This embraces a writ of scire facias to award execution on a judgment; and if such writ of scire facias be on its face not returnable within that period it is void. Warren v. Saunders, 27 Gratt. 259.</p> <p>2. Idem-Judgment thereon.-Judgment on a writ of scire facias, returnable on its face not within ninety days, can only be treated as a judgment rendered without service of process, because rendered on a void process, and is therefore void.</p> <p>3. Idem-Idem-Award of execution.-The utmost extent of the jurisdiction in the court upon a writ of scire facias, reciting a judgment for money, and notifying the defendants to appear and show why the plaintiffs should not have an execution against them for the debt, interest and costs of said judgment, is to render judgment that the plaintiffs in the writ of scire facias have execution of the judgment in the writ set forth.</p> <p>4. Idem-Idem-Idem-Lien.-Such judgment for award of execution does not constitute a lien on real estate.</p> <p>3. Idem-Idem-Judgment for money.-A judgment on such writ of scire facias (even where the writ is valid) for money, and not merely for award of execution, is in excess of the jurisdiction of the court, and is absolutely void, and may be so declared either in a direct or a collateral proceeding. See Wade v. Hancock, 76 Virginia, 620.</p>