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Ch. 27
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580


LITIGATING THE CONTROVERSY

Cli. 27

of Avoidance (or evasion), there is no gi-ound for Judgment Non Obstante, and the Parties should be required to Plead to an Issue appro­priate to determine the dispute.” 65



STATUS OF RETROSPECTIVE MOTIONS

UNDER MODERN CODES, PRACTICE

ACTS AND RULES OF COURT

310. In general, it may be said that the Retrospective Motions, as they existed at Com­mon Law, were adopted in the Early Period of American Procedural Development. Sub­sequently, due to the lack of a Centralized Court System, under which the Trial Judges sat En Eanc, as in England, certain Modifica­tions in the Procedures Regulating these Mo­tions were made. But in substance these Pro­cedures followed and still follow the Pattern developed by the Common Law Practice.



Motions for New Trials

WITH certain Modifications it may be said that the English Common-Law Practice as to Granting New Trials was adopted by the American Courts, being used to Review Errors that occurred at the Trial and which were not Apparent on the Face of the Com­mon-Law Record. And the Grounds for Granting New Trials, as developed in Eng­land, have become the recognized Grounds for New Trials in both Common-Law and Code Jurisdictions.68 The Four Day Period after the Entry of the Verdict, during which, at Common Law, the Motion is normally made, has ranged from Two Days in the State of Washington 67 to Sixty Days in Wis­consin.M Rule 59(b) of the Federal Rules of Civil Procedure provides that the Motion may be made as late as Ten Days after Judg­

ment.

6~. lCcigwin, Cases in Common Law Pleading, e. xvi II, Retro~pcctive Motions, 775 (24 ed., Itocliester 1934).

60. Millar, Civil Procedure of the Trial Court In Historical Perspective, C. XIX, Trial by Jury, 7, The Motion for New Trtal, aas, 3341 KNow York

1952).
•t Wash.Rev.Stat. ~ 402 (RemIngton, 1932).
SS, ‘Wjs,Stat. ~ 270.49 (1949).

According to MilIar,69 our Courts have followed the Common-Law Practice in allow­ing more time where the Motion for New Trial is based upon Newly Discovered Evi­dence. A Motion on this Ground may be made within a reasonable time, Not More than One Year from the Date of Judgment, under Rule 60(b) of the Federal Ituics of Civil Pro­cedure,

The Motion for New Trial, as at Common Law, is still addressed to the Court’s discre­tion.7° While there is a distinction bets%’een a Motion Raising a Question of Law, and one in­correctly characterized as an “Error in Fact,” as, for example, where it is asserted that the Verdict is against the weight of evidence, it seems clear that in most Jurisdictions Errors of Law not productive of manifest injustice will not warrant the granting of a New Trial. Unfortunately, some American Courts have followed the 1835 English Court of Ex­chequer Rule, under which, in the matter of evidence, “an Error of Ruling created per se for the excepting and defeated party a right to a New Trial.” ~‘ The Common-Law Rule, un­der which a New Trial was not in order, even though mistakes may have occurred, if it appeared upon the whole that substantial Justice had been done, now seems the proper solution. Within forty years after it was adopted, the “Exchequer Rule” was abolished in England under the Judicature Acts, with the Rules of 1875, which provided that a New Trial on the ground of an improper Instruc­tion by the Court or an improper Admission or Rejection of Evidence, was not to be grant­ed unless “some substantial wrong or mis-

69. 31111cr, Civil Procedure of the Tria’ Court In Historical Perspective, c. XIX, Trial by Jury, § 7, The Motion for New Trial, 337 (New York 1952).

7~. Id. at 338.

71. Miliar, Civil Procedure Of the Trial Court ill Historical Perspective, e. XIX, Trial by Jury, § 7, The Motion for Ncw Trial, 338 (New York 1952). see, also, Crease v. Barrett, 1 Cr. M. & It. 919, 149 Eng.Itep. 1353 (1835).

Sec. 310



RETROSPECTIVE MOTIONS

581


carriage has been thereby occasioned in the Trial of the Action.” 72
The Motion for a New Trial in America is generally no longer passed upon by the Court En Banc, but by the Trial Judge. This change in the Common-Law Practice resulted from a decentralization of the Trial Courts, and the development of Review of Erroi’s by separate Appellate Courts.
At Common Law a Verdict was indivisible, hence a New Trial involved a Retrial of All Issues, and this was true although the Mo­tivating Error was not applicable to All Is­sues, and the Same Parties were also involved in the New Trial. One of the earliest rec­ognitions of the Doctrine of Severability of Issues and Parties came in Massachusetts in 1831 in the case of Winat v. Columbian Insur­ance Co.,73 and since then has come to prevail in Other States.
Related to this problem is that of whether a Court may condition its refusal of a New Trial on the plaintiff’s remission of an appro­priate amount for that of the Verdict. In Wood v. Gunstone ~ decided in 1655, a New Trial was granted because the Damages were Excessive, and this practice has continued.3 Nor does the Court’s Action in this respect violate the Constitutional Right to Trial by Jury)° A more difficult question arose when the Amount of Damages given in the Verdict appeared Inadequate, and there has been some doubt expressed as to the Constitution­ality of Statutes in Some States prohibiting

72. For the details of this development, see Millar, Civil Procedure of the Trial Court In Historical Per­spective, e. XIX, Trial by Jury, § 7, The Motion for New Trial, 339 (New York, 1952).



73. 29 Mass. 279 (1831).
74. Style 466, 82 Eng.itep. 867 (1655).
~ Scott, Fundamentals of Procedure in Actions at Law, c. IV, Excessive and Inadequate Damages, 110 a. 4 (New York 1922).

7€. Smith v. Times Pub. Co., ITS Pa, 481, 36 A. 296 (1896).

New Trials because of the Smallness of the Damages Awarded.” The narrow English doctrine as to the Severability of Issues re­ceived a check in the decision of Chief Jus­tice Doe of New Hampshire in the case of Lisbon V. Lyman,76 in which he took the position that a Party had a right to have a Prejudicial Error in a Tria] corrected, but not a right to a New Trial if the error could be otherwise corrected, and that in making such correction it was necessary to destroy only what was erroneous when the latter could be severed from the former. This Rul­ing was followed in Other States, New Jersey making it the subject of a Provision of the New Jersey Practice Act of 1912.~° And in Dimick v. Schiedt,8° the problem dealt with the Issue in a negative manner, the Supreme Court holding that, regardless of Earlier Rulings, the Common Law at the time of the adoption of the Constitution “forbade the Courts to increase the Amount of Damages awarded by a Jury in Actions such as that here under consideration,”—that the practice of Increasing Damages, where the Damages given by the Verdict were Inadequate, was no part of recognized practice—and hence was to be regarded as in violation of the Sev­enth Amendment. Mr. Justice Stone, in a dis­senting opinion, viewed this conclusion as un­tenable, and it has been urged that there appears to be no convincing reason why the Additur should not be governed by the same considerations as the Remittitur.8
77. Ilughey v, Sullivan, 80 F. 72 (1897). tS. 49 N.H. 553 (1870).

79. 5ee hub 73, which provided: “When a New Trial ~s Ordered because the Damages are excessive Or

inadequate and for no other reason, the Verdict shall be set aside only in respect of Damages, and shall stand good in all other respects.” See, also, Gaff­hey v. lilings\vortb, 90 N.J.IJ. 490, 101 A. 243 (l917)t



80. 293 13.8. 474, 482, 55 S.Ct. 206, 299 (1935).

St. Millar, Civil Procedure of the Trial Court in His­torical Perspective, c. XIX, Trial by Jury, f 7, The Motion for New Trial, 345 (New York, 1952).

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582

LITIGATING TIlE CONTROVERSY

Ch. 27

The Motion in Arrest of Judgment

THE Motion in Arrest of Judgment was used in the Early Period of American Pro­cedure, and is still in effect in our Common Law Jurisdictions. In Some States, as, for example, Massachusetts 87 and Rhode Is­land,83 its use was limited to cases involving a Lack of Jurisdiction of the Court, whereas in Maine,84 the Motion was abolished entirely in Civil Cases. No mention of the Motion was included in the New York Code of Pro­cedure in 1848, but it has received Statutory Recognition in a Few States having Unitary Procedures, such as Arizona, Georgia, In­diana, North Carolina and Texas, In a Few Other States such as Colorado and South Carolina, it has been used without such Stat­utory Recognition. In still Other States, as in Kentucky, the Motion in Arrest and the Motion for Judgment Non Obstante were fused by Statutory Enactment,85 and this practice has been adopted in a number of Other States. This latter Motion, which is in effect a Motion for Judgment on the Plead­ings, is not restricted to a Motion After Ver­dict, and it had the combined effect of a Demurrer and the relevant Common-Law Motions. In New York the recognition of the Judicial Equivalent of the Common-Law Mo-dons was given Statutory Effect in 1908 when the Legislature provided that where either Party was entitled to Judgment on the Plead­ings, the Court might give Judgment at any time after Issue Joined,86 and this provision was carried forward in the Civil Practice Act


82. Mass,Ann.Laws, c, 231, § 136 (1933).
83. R.1.Gen.Laws Ann., e. 522, 1 (1938).
84. Me.rtev,Stat., e, 100, 52 (1944).
85. ICy,Code Pract. In Civil Cases, § 424 (1851), re­enacted in the Code of 1854, § 410. The Statute ic­quired that “where, upon the statements in the Pleadings, one party is entitled by Law to Judg­ment in his favor, Judgment shall be so rendered by the Court, though a Verdict has been found against such party.”

of 192O,~~ being expanded to pennit con­sideration of Admissions outside the Plead­ings, and it was made available at any Stage of an Action or Appeal. In the Common-Law Motions, the result of the Motion turns upon the Pleadings exclusively, without any regard to the evidence. The Rule is probably to the contrary under the liberal provisions as to Amendment which now prevail, except where the Fact involved was neither alleged nor sub­ject to Proof, This situation was met in Eng­land by the Common Law Procedure Act of 1852,~~ which permitted the Party whose Pleadftlg was said to be Defective to suggest the existence of the Fact in question, which, when Pleaded to by the Opposite Party, was then tried. If found in favor of the Suggest­ing Party, he was entitled to the rendition of the same Judgment which would have been entered if the fact had been Originally Stated in the Pleading under attack. This Practice was adopted in substance in Florida.89


Under the Federal Rules of Civil Pro­cedure the Motion in Arrest of Judgment is not recognized, but the same work to some extent is done by the Motion for Judgment on the Pleadings, which may be made in ad­vance of the Trial.90 And under the Amend­ments of 1946, and the rule currently in ef­fect, it is provided that if Matters Outside the Pleadings are considered on the Motion, such Motion is to be treated as One for Sum­mary Judgment.°’
The Motion for Judgment Notwithstanding the Verdict

TIlE Motion for Judgment Non Obstante Veredicto operated on the theory that the de­fendant’s Plea had expressly admitted the Cause of Action Stated in the Declaration,


87. N.Y.C.P.A. 476 (Clevenger, 1962).
88. 15 & 16 VIct. e. 76, li 143, 144.
89. Pla.Stat. § 5427 (1949).
9~- Rule 12(c).

SC. N.Y.Laws, e. 166 (1908).

St Ibjd,

Sec. 310



RETROSPECTIVE MOTIONS

583


while failing to interpose a legally sufficient Defense. This Motion, like that in Arrest of Judgment, was affected by the Statute of De­murrers 92 and the doctrine of Aider by Ver­dict. It was used during the Developmental Stage of American Procedure, and, like the Motion in Arrest, has been retained in the Common Law States. It received no recogni­tion in the New York Code of Procedure in 1848. Under Modern English Law the names of the Retrospective Motions no longer consti­tute a part of’ ‘the working procedural vocab­ulary.” ~ Under the English Rules, the Issue as to a failure to State a Cause of Action or Defense after Verdict, is converted into one as to whether a Proper Cause of Action or Defense has appeared in the evidence, as the applicable principle now is, according to Lord Atkin in Bell v. Lever Bros., Ltd.,94 that “if the Issue of Fact can be fair]y deter­mined upon the existing evidence, they (the Parties) may of course Amend.”
The Motion for Judgment Notwithstanding

the Verdict, of Common Law Origin and


:ome

it on 92, 27 Elis. c. 5, 6 Statutcs at Large 300 (1553).



rite

de­the ion,

93 Millar, Civil Procedure of the Trial Court in His­torical Perspective, e. XIX, Trial by Jury, § 5, The Motion In Arrest and its Congeners, 329 (New York 1952).
H 11932i AC. 161, 218.

Development, must not be confused with the Motion for Judgment on the Evidence Not­withstanding the Verdict, as the former is governed by the State of the Pleadings, while the latter is influenced by the State of the Evidence.95


The Motion for Re pleader

THE Motion for Repleader, granted upon the Immateriality of the Issue as made by the Pleadings, has survived in most Common Law Jurisdictions °° and in some other plac­es.°7 Where not present in its Common-Law Procedural Form, the same result may gen­erally be accomplished by obtaining an Order for an Amendment of the Pleadings and the Award of a New Trial.85


90’ For a full discussion of this new procedural de~ vice, see, Millar, Civil Procedure of the Trial Court in Historical Perspective, c. XIX, Trial by Jury, 6, The Motion for Judgment on the Evidence Not­~vitlistanding the Verdict, 330435 (New York 1052).
90. Millar, Civil Procedure of the Trial court in His­torical Perspective, e. XIX, Trial by Jury, § 5, The Motion in Arrest and its congencrs, 320 (New York 1952).
97. 49 C.J. 580, § 812.
98. 1sf Illar, Civil Procedure of the Trial Court in His­torical Perspective, c. XIX, Trial by Jury, 5, The Motion in Arrest am] its Co!Igeuer~, 329 (New York 1952).

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Sec.

PART SIX
JUDGMENT, EXECUTION AND APPELLATE



REVIEW

CHAPTER 28

THE JUDGMENT

The Definition and Nature of a Judgment.

The Judgment the Object of an Action.

The Judgment at Law and Decree in Equity Compared and Distinguished.

The Classification and Scope of Judgments.

Revival of Judgments.

Status Under Modern Codes, Practice Acts and Rules of Court.

THE DEFINITION AND NATURE OF

A JUDGMENT
311. A Judgment is the Award of Relief pronounced by a Court, upon the Facts Found.
AT Common Law, on the expiration of the Rule for Judgment, if there were no previous Motion for a New Trial, or in Arrest of Judg­ment, and if the prevailing Party had had the Postea stamped and marked by the Clerk of the Postea, he might proceed to sign Final Judgment.
According to Blackstone, in Ancient Times a Judgment was represented as the determi­nation and Sentence of the Law and not the determination or sentence of the Judge pro­nouncing it,’ The theory was that it would better command the obedience of the suitors and the support of the community if it was regarded as the Act of the Law, binding on all, as opposed to being treated as the Act of the Judges, who were not infallible. This dis­tinction found expression in the Style and Form of the Judgment, which were said to be
2- 3 Blackstone, Commentaries o,i the Laws of Eng­laud, 396 (6th ed., Dublin, 1775).

“the Sentence of the Law, pronounced by the Court upon the Matter Contained in the Rec­ord.” 2 Thus, the Ancient Judgment made no mention of the Judges,3 but read: “It is con­sidered by the Court” (consideToturn est per curiani) that the plaintiff do recover his Damages, his Debt, his Possession, and the like; which implies that the Judgment is none of their own, but the Act of Law, pro­nounced and declared by the Court.4


THE JUDGMENT THE OBJECT OF AN ACTION
312. An Action or Suit is a Proceeding, the object of which is to secure a Judgment.
UNDER the Modem View, it may be said that the Final Judgment or Decree is the Award of the Relief provided by Law for the redress of injuries or the enforcement of
2. Id. at 305.
3. Martin, Civil Procedure at Commo]l Law, C. XIV, Trial, Verdict, Judgment and Execution, Art. III, Judgment, 374, Defined, 315 (St. Paul, 1005).
4. Ibid.

311.


312.

313.


314.

315.


316.

584


Sec. 313

TUE JUDGMENT

585


rights, as that the plaintiff do recover his Damages, his Debt, his Possession and the like, and the entire Action or Suit is merely the vehicle or means of pursuing and making application for this Award. An Action or Suit may be defined as a Proceeding to obtain a Judgment (which term we may use to in­clude the Decrees of Courts of Equity), which is the great end and object of all con­tentious proceedings. The Final Judgment is the Conclusion of Law officially declared and pronounced by the Court upon the Facts Found, after due deliberation and inquiry, declaring that the plaintiff has either shown himself entitled, or has not, to recover the re­dress he sues for. In Jurisdictions which have abolished the distinctions between Law and Equity as far as Procedure is concerned, the final determinations of any Action or Suit is called a Judgment.5
The natural right to relief for Breaches of Contracts would seem to be performance in Kind, to be enforced by an Order of the Court directing the defendant to perform under threat of punishment by imprisonment or fine. So, in the case of Tort, it would seem that the plaintiff should have a right to spe­cific reparation, by a decree compelling the Tort-Feasor to restore the state of things that would have existed but for his wrong. Likewise, in the case of a claim to property, the natural relief would seem to be a decree requiring the detainer to deliver possession of the property and make restitution of the very thing itself.
As a General Rule, however, Money Dam­ages are the panacea of the Common Law; Specific Relief is regarded as exceptional and extraordinary, and generally attainable only in Equity, except in the case of recovery of Debts and of Possession of Real and Personal Property.
5- See Walker y. Walker, 93 Iowa 643, 61 N.W. 930

(1895).


TEE JUDGMENT AT LAW AND DECREE IN EQUITY COMPARED AND

DISTINGUISHED
313. A Judgment at Law merely determines the Matter of Right between the Parties, where­as a Decree in Equity not only determines the Matter of Eight between the Parties, but or­ders the defendant to obey the Decree on Peril of Contempt for failure so to do.
THE Judgment of a Common-Law Court did not order the wrongdoers to do anything; it did not directly seek to compel them to re­pair their wrongs. It merely determined the Matter of Right between the Parties. Thus, the Judgment was simply that the plaintiff do recover the Damages, Debt or Possession, as the case may be. If the moral persuasion of the Judgment was not sufficient to move the wrongdoer, then the Law intervened in aid of the Judgment. It sought by the exer­tion of physical force through the Sheriff and the seizure of the defendant’s property on Execution to give the plaintiff the Redress Awarded, The Sheriff was invested with le­gal authority, under Writs of Execution, to seize, sell and transfer Title to the defendant’s property subject to debts, and by such seizure and sale to pay the Money Judgment out of the proceeds. But in no ease was it adjudged at Common Law that the defendant be com­pelled to act or aid the plaintiff or Sheriff to do Justice or Satisfy the Judgment. All that the defendant was required to do was to sub­mit to the authorized acts of the Sheriff. The defendant could not be called before the Court and punished for a contempt because he did not actively exert himself in surrendering his property or disclosing its whereabouts to the Sheriff, so that he might carry out and Satis­fy the Judgment. As Professor Langdell xr­marked: “The defendant may know where the property is, having purposely removed it or concealed it from the Sheriff; still he can-not be ordered to deliver it to the plaintiff.. So, if a defendant has refused to Perform a Contract, a Court of Common Law can only give the plaintiff Damages, no matter how

586


JUDGMENT, EXECUTION AND APPELLATE REVIEW

Ch. 28

important to the latter actual performance may be.” 0 Neither did the Common-Law Courts successfully accomplish a division or partition of real estate among the several co­owners, nor compel the rendering of an ac­count, though this was formerly attempted.


A Decree in Equity, as contrasted to a Judgment at Common Law, not only deter­mined the Matter of Right between the par­ties; it ordered the defendant to do some­thing about it, on peril of being jailed for Contempt if he failed so to do. This was done n the theory that in refusing obedience to the Decree, the defendant was guilty of a Contempt, not to the Chancellor, but to the King, and hence when he proceeded to punish him for Contempt, he used a Procedure un­known to the Common Law, the defendant being treated as if he were a rebel and con­temner of the King’s Sovereignty-7
THE CLASSIFICATION AND SCOPE OF’ JUDGMENTS
314. Judgments are either Interlocutory or Final. The former is one which defines the rights of the parties at an intermediate stage of the action, whereas the latter is one which ends the particular Action. The Scope of a Judgment is determined by its Form and ob­ject.
interlocutory Judgments
INTERLOCUTORY Judgments define the rights of the parties at an intermediate stage of the action, but they do not Terminate the Suit. Probably the best instances of Interloc­utory Judgments are those entered by Default in Actions of Assumpsit, Case, Covenant and Trespass, where the Sole Object of the Action is the Recovery of Damages, by which at Common Law only the Right to recover is de­termined, leaving the Amount to be ascertain­ed by a Writ of Inquiry or other proceedings
6. A Summary of Equity Pleading, Introduction, IT, Origin and Nature of Equity Jurisdiction and Pro. eadure, 40, p. 32 (3d ecL, Cambridge, 1882).
‘1. Id. at 1 38, p. 30.

upon which a Final Judgment will be ren­dered. There is one species of Interlocutory Judgment, however, which establishes only the Inadequacy of the Defense interposed. A Judgment for the plaintiff on a Demurrer to a Plea in Abatement is such a Judgment as it is a decision on a point independent of the Merits of the Case, and in Form is always that the defendant Answer Over. There are many Judgments, Interlocutory in character, which define the rights of the parties at an Inter­mediate Stage of the Action.8


Judgments before Issue Joined are of va­rious Kinds, including those referred to above, and are in their nature Interlocutory, though often not classed as such. They are generally the result of the fault or neglect of one of the Parties in failing to pursue the means available, and may be for either Par­ty, If for the plaintiff, Judgment may be for Default of Appearance of the defendant, aft­er being served with Process; or, in All Ac­tions,! of Nit Dicit, where, having Appeared, he neither Demurs nor Pleads, nor maintains his Pleadings until the Issue is complete. Again, if the defendant’s Attorney Enters on Record a statement that he is not informed of any answer to be given, or if the defend­ant, having no Defense, chooses to Confess the Action, Judgment for the plaintiff will be respectively Non Sum Infarnwtus, or by Con­fession. If for the defendant, Judgments of Non Prose quitur, Retraxit, (Jassetur Breve, Nofle Prose qui, may be Entered against the plaintiff, according as he fails to maintain his Suit, or Prays that his own Writ be Quashed, or Discontinues the Action.9
Thus, Interlocutory Judgments at Com­mon Law may be Judgments which are fol­lowed by Final Judgments, such as a Default
8. See Martin, Civil Procedure at Common Law, c. XIV, Trial, Verdict. Judgment and Execution, Art. ITT, Judgment, 310—310 (St. Paul, 1905), for a dis­cusulon of the vafious typog or Interlocutory Judg­ments.

°. Id. at 311.

Sec. 315

THE JUDGMENT

587

Judgment which is followed by an Inquiry to assess Damages and then a Final Judgment; or, Interlocutory Judgments at Common Law may be such as settle an Issue in the course of the Action, but only to clear the way for another Issue to be raised in the same case, such as where the Judgment on an Jssue of Law on a Dilatory Plea is in favor of the plaintiff, in which case the Judgment is, Let the Defendant Answer Over to the Action, called a Judgment Respondeat Ouster.’°


Final Judgments

FINAL Judgments are instanced by the Judgments rendered where an Issue of Fact has been tried by a Jury, who also Assess the Damages. Also, at Common Law, a Judg­ment f or plaintiff on a Demurrer to a Plead­ing-in-Chief, where the damages are liquidat­ed, and a Judgment for defendant on a De­murrer to a Pleading-in-Chief, are Final Judg­ments. In these cases, there is nothing left to be done, and the Judgment, therefore, neces­sarily ends that Particular Action, as distin­guished from an Interlocutory Judgment, which leaves something remaining to be done and does not Terminate the Action. Thus, a Judgment for plaintiff at Common Law on a Demurrer to a Pleading-in-Chief where the damages are unliquidated, may initially be classified as Interlocutory, but it is followed, after assessment of damages, by a Final Judgment.” Final Judgments may be in dif­ferent forms. If, for example, there is a Judg­ment for defendant on a Dilatory Plea, either on an Issue of Fact or Law, the Judgment is generally that the Writ be quashed, or the Ac­tion Dismissed. Though such a Judgment is not conclusive on the Merits of the Case, it


10. Stephen, A Treatise on the Principles of Pleading
in Civil Actions, c. I, Of the Proceedings in an

Action, from its Commencement to Its Termination,

133 (3rd. Am. ed., by Tyler, Washington, B. C..

1300).
11. Martin, Civil Procedure at Common Law, c. IX, De!e,ices, Art. IT, Demurrer, § 241, Judgments on Demurrer, 201, 202 (St. Paul, 1905).

nevertheless disposes of the particular Suit, and has been classified as a Final Judgment.’2
Under Modern Practice and Statutes, a rul­ing on a Demurrer to a Pleading-in-Chief us­ually does not result in a Final Judgment, as where a Demurrer to a Pleading-in-Chief is sustained, the Party whose Pleading is found defective is generally permitted to Amend his Pleading; and where a Demurrer to a Pleath ing-in-Chief is overruled, the Party ~‘.‘ho inter­posed the Demurrer is generally permitted to Plead Over.

REVIVAL OF JUDGMENTS
315. If no execution was had upon a judg­ment in a real action for a year, it was neces­sary to obtain a Scire Facias in order to ex­ecute. The same procedure was made avail­able, by Statute, in cases where a Judgment had been obtained in a personal action.
A Scire Facias was also necessary where a new person was to receive the benefit of or to be charged by the execution.
WHEN, in a real action, Judgment was ob­tained at Common Law for a particular par­cel of land, it was required that any execu­tion thereunder be entered on the Roll. If no such entry appeared on the Roll for a year, execution could thereafter be had only by re­sort to a Writ of Scire Facias, which issued to show cause why execution should not be awarded under the Judgment.13
The reason the plaintiff was required to resort to Scire Facias after the lapse of a year was because it was presumed, in view of his long delay in executing upon the Judgment, that the execution was released. The defend­ant would not be disturbed in his possession without having the opportunity to plead re­lease in Court, or showing cause why the ex­ecution should not be had.
12. ItL Ut 319. 320.
13. TIddi, The Practice of the Court of King’s Bench in Personal Actions, c. XLII, Of Seire Faeias, 1000 (1st Am. ed., Philadelphia, 1807).

588


JUDGMENT, EXECUTION AND APPELLATE REVIEW

Ch. 28

However, with respect to personal actions, the Common Law rule was otherwise. Where a plaintiff had taken no process of execution for a year, he could not then resort to Sci?e Facias, but was required to commence an ac­tion upon the Judgment, and the defendant ‘was obliged to show how the debt, which was evidenced by the Judgment, had been dis­charged,14


This situation with respect to Judgments which had been obtained in personal actions ‘was changed by Statute in 1285,’~ and the plaintiff in a personal action was given re­course to a Sciire Facias to revive his Judg­ment, thereby conforming the procedure available to him with that which prevailed ~vith respect to judgments in real actions. However, due to the wording of the Statute some question arose as to whether this was true in the case of a Judgment obtained in an action of Ejectment, which was considered a personal action, or whether the Statute had failed to give the right to one holding a Judg­ment in Ejectment. In practice, however, the remedy was granted in such cases, which in fact appeared proper under a reasonable in­terpretation of the statutory language.
A Scire Facias was also necessary in cases where a new person was to receive the bene­fit of or to be charged by the execution, be­cause of the rule that executions must corre­spond with the Judgments upon which is-

sued.~


24. lii. at 1000, 1001.

25. 13 Ediw. 1, Stat, I c 45, 1 Statutes at Lnrge 224 ‘(1955).
*6 Martin, Civil Procedure at Common Law, c. II, Personal Actions Ex Contraetu, A it. VI, Seire

Paeias, § 72, Definition and HIstory, 67 (St. Paul, i905). At page 68 there is a succinct discussion of ‘the Writ of Bevivor, the origin of which is found 1n the Common Law Procedure Act of 1852, which

‘was made in many instances to serve the pnrpose

of a Seira Facias in the enforcement of Judg­

STATUS UNDER MODERN CODES,



PRACTICE ACTS AND RULES

OF COURT
316. The Codes often define the Judgment so as to include both the Common Law Judg­ment and the Decree in Equity. Nevertheless, a Judgment on a claim essentially legal in nature retains the attributes of the Common Law Judgment, white a Judgment on a claim essentially equitable in nature retains the at­tributes of a Decree in Equity.


Under the Codes a Judgment is generally defined as the final determination of the rights of the parties in an action or a pro­ceeding.17 And where the Codes have pur­ported to abolish the distinction between ac­tions at law and suits in equity, the final de­termination of the controversy, be it at law or equity, is termed a Judgment.1° Thus, the decree in equity has, from the standpoint of nomenclature, been replaced by the Judg­ment.
To consider this change as being of sub­stantive import, however, would obviously be in error. At Common Law, as indicated in the above discussion, the Judgment at Law was limited to a determination of the matter of right between the parties, while the De­cree in Equity not only determined the Mat­ter of Right between the parties, but also or­dered the defendant to do something about it, on peril of being jailed for contempt if he failed to do so.1° The fact that under the Codes the term Judgment now is generally used to embrace both situations does not change the fact that a Judgment on a claim essentially legal in nature will still have the attributes of the Common Law Judgment, while a Judgment on a claim essentially equi­table in nature will retain the attributes of a Decree in Equity.
17. Wood v. City of Salamanea, 289 N.Y. 279, 45 N. E.2t1 443 (1942); Bell Grocery Co. v. Booth, 250 Ky, 21,01 S.W.ZtI 379 (1933).
15. flayinond v. Blanegrass, 38 Mont. 449, 93 P. 848 (1008).

nents,


19. Discussed supra at Section 313.

Sec.


CHAPTER 29

TilE EXECUTION1

317. Writs of Execution.

318. The Lien of Executions.

319. Status of Execution Under Modern Codes, Practice Acts and Rules of Court.

WRITS OF EXECUTION
317. A Writ of Execution is an authoriza­tion to an Executive Officer, Issued from a Court in which a Final Judgment has been rendered, for the purpose of carrying such Judgment into Force and Effect.
1. In general, on the subject of Enforcement of hUg­ments by Execution, see:
Treatises: Carter, The Law of Executions (London

1706); Gilbert, The Law of Executions, &e. (Lon­don 1763); Burgham, The Law and Practice of

Judgments and Executions Including Extent at the

Suit of the crown (London 1815); Theobald, The

Law for Abolishing Imprisonment for Debt on

Mesne Process, Extending the Remedies of Judg­ment Creditors, &c. (London 1838); Berman, A.

Treatise on the Law of Executions (New York 1878);

Freeman, A Treatise on the Law of Executions Ia



Civil Oases and of Proceedings in Aid and Restraint

Thereof (San Francisco, 1876).


Articles: Loyd, Execution at commoh Law, 62 U.Pa. L,Rev. 354 (1913); Riddell, Why Pickwiclc was Gao)eU, 17 IILL.Rev. 14 (1923); ‘Fieri Faeias Lands” in Upper Canada, 7 Canada Bar.Rev. 448 (1929); Finley, Arrest of Defendant n~ civil Cases, 20 lCy.L,J. 478 (1932); Newman and Kaufman, The New York Garnishee Execution as a Practical Rem­edy, 12 N.Y.ILL.Q.Rev. 255 (1934); Lunn, Modern­ized Process for Enforcement of Judgments, 22 A,B.A.J. 76 (1936); Conard, Judgment-Proof Weulth; A Study of Some Deficiencies in Penn­sylvania A~aehment Executions. 42 Di&L.Rev. 119 (1938); Busehman & Mayersohn, Civil Arrest and Execution Against the Person, 12 Albany L.Rev. 17 (1048); Thompson, Collecting a Judgment, 30 Ore. L.Rev. 95 (1051); Bowman, How to Collect a Judg­ment, 56 Commercial U. 198 (195!).
Comments: Execution Against a Debtor in the House of a Third Party, 57 Albany L.a. 397 (1898); Debtor-Creditor Law—Exemption from Execution and Other Legal Process, 10 Wis,L.Rev. 277

It is founded upon the Judgment, must gen. erally conform to it in every respect, and the plaintiff is always entitled to it to obtain a satisfaction of his claim, unless his Right has been suspended by proceedings in the Nature of an Appeal or by his own agreement.


(1935); Execution—Contents of Safe Deposit Box Rented by Judgment Debtor, 3 U.Pitt.L.Ilev. 159 (1936); Seizure Under Execution—Exemptions— Substitution, 11 Tulane L.Rev. 145 (1936); Levy and Execution—Conditional Sales—Leviahie Interest of Conditional Vendee—Waiver of Reservation of Ti­tle, 13 N.YJJ.L.Q.Rev. 623 (1936); Levy of Attach­ment and Execution on Buyer’s Interest Under Con­ditional Sales Coatract, 42 W,Va.L.Q. 152 (1936); Execution—Waiver of Inquisition or Condemnation

—Waiver of Irregularity, II Temple L.Q. 106 (1936);

Corporations: Execution: Right of Minority Stock­holder to Issue Execution on a Judgment Secured on Behalf of Corporation as Result of Stockhold­er’s Bill, 22 Cornell •L.Q. 105 (1036); Emblements— RequIsites—Execution, 2 U. of Newark L.Rev. 85 (1937); Execution—Liability for Wrongful Issu­ance—Malicious Use of Process, 12 Temp.L~Rev. 412 (1938); Execution Against the Person—Special Finding that Defendant was Malicious as Condi­tion Precedent to Issuance of the Writ under Illi­nois Statute, 17 Chi-Kent L.Rev. 278 (1939); Trial Practice—Levy and Execution—Right to Levy on a Judgment or on a Debt, 14 So.Calif.L.Rev. 172 (1941); Judgments—Executions—Statutes of Limi­tation, 22 N.C.L.Rev. 146 (1944); Orders of Court and Garnishee Process, 21 Australian L.J. 346 (1948); Execution—Interest Necessary to Support an Exemption Claim, 34 Minn.L.Rev. 350 (1950); Personal Property Exemptions under Missouri Stat­utes, 19 U.Knn.City L,Rev. 72 (1951); Perpetuating the Force of Judgments and Judgment Liens In Texas, 29 Tex.L.Rev. 580 (1951); Exeeution—Wlfe of Judgment Debtor in Contempt (or Violation of Restraining Provision of C.P.A., § 781, 3 Buffalo L,Rev. 318 (1954).

589

590


JUDGMENT, EXECUTION AND APPELLATE REVIEW

Ch. 29

There were a variety of Writs of Execution at Common Law against person and property, all of which must be sued out within a year after Final Judgment.


The Definition and Nature of Execution

AFTER Final Judgment, which in theory is the end of an Action, the plaintiff may, at any time withln a year, sue out a Writ of Execution against the body, lands, or goods of the defendant, provided there be no Writ of Error pending, or agreement to the con­trary.2


An Execution may be defined as a Judicial Writ grounded on the Judgment of the Court from which it issues,3 and is supposed to be Issued by the Court at the request of the party entitled thereto, to give him Satisfac­tion on the Judgment standing in his favor.4
The mere Judicial Declaration of the right to redress, the award of relief, can pro­duce no practical benefit or result, unless the defendant, under its moral persuasion, vol­untarily submits to its determination of the Matter of Right between the parties, and sat­isfies the plaintiff’s demand, If such volun­tary action is not forthcoming, then the plaintiff must resort to some Form of Execu­tion, the compulsory process for satisfying the plaintiff’s demand and putting the relief awarded by Judgment into Legal Effect by the exercise of Executive Force.
Execution, therefore, is in the nature of an Executive Remedy, supplementary to the Judicial Remedy, and may consist:
(1) In placing the plaintiff in possession of his land or property by force, the actual res­titution of the thing taken or detained;
t. TIdd, The Practice of the Court of King’s Bench

In Personal Actions, c. XLI, Of Execution, 909 (1st

Am. ed., Philadelphia, 1807); California: Hastings

v. Cunningham, 39 Cal. 137 (1870); WisconsIn:

Drake v~ Leighton, 69 Wis. 99, 33 NW, 81 (1587).
3. Martin, Civil Procedure at Common Law, c. XIV, Trial, Verdict, Judgment and Execution, Art. IV, Execution, 381, Deflned, 324 (St. Paul 1905).
4. Id. at 324, 825.

(2) In taking from the defendant what be­longs to him and turning it over to the plain­tiff, or selling it at public auction, transfer­ring Title against the owner’s will, and ap­plying the proceeds to satisfy the Judgment for money;


(3) In seizing the goods or land of the de­fendant, and holding them as security until the defendant complies with the Judgment;
(4) In seizing the person of the debtor himself and imprisoning him until he pays the debt or performs the commands of the Court.
At Common Law, the Execution following the Judgment, is either for the plaintiff or the defendant. If for the plaintiff, the Exc­cution upon a Judgment in Assumpsit, Case, Covenant, Replevin or Trespass, was for the damages and costs; in Debt, for the debt damages and costs recovered; in Detinue, the Execution is for the goods or their value, with damages and costs. If for the defend­ant, upon a Judgment in Replevin at Common Law, the Execution is for a return of the goods. And, in the other Actions, upon a Judgment of Non-pros, Non-suit or Verdict, it is for the costs only.5
An Execution must be sued out of the Court which issued the Judgment. And while supposedly awarded by the Judge or Judges in Court, in reality and in practice no such award is in general actuaily made. The party who secured the Judgment, and who has a Right to a Writ of Execution, usually sued it out of the proper office in the Form adopted under the Law to the Form of Ac­tion and Nature of the Judgment to be car­ried into effect. According to Martin,6 Exe­cutions fall properly into two general classes, each class turning upon the nature of the
5. 2 Tidd, The Practice of the Court of King’s Bench in Personal Actions, c. XLI, Of Execution, 911 (1st Am. ed., Philadelphia, 1807),
S. Martin, Civil Procedure at Coinnion Law, e. XIV. Trial, Verdict, Judgment and Execution, Art IV, Execution § 381, Defined, 325 (St. Paul 1905).

Sec. 317

THE EXECUTJOlt’~

591


Judgment to be enforced. These two types of Execution will now be considered, with at­tention being directed first to executions where the judgment awards possession of property, and second, where the judgment is for the recovery of money only, as a debt or damages.
Restitution of Possession

IN the case of a Judgment awarding pos­session of land, a Writ of Possession to the Sheriff, commanding him to give actual pos­session to the plaintiff of the land so recov­ered, is an efficient means to put the sentence of the Law into Force. To accomplish the delivery, the Sheriff may take with him the Posse Coni~tatus, or power of the county, calling to his assistance private citizens, and may justify breaking open doors, if the pos­session be not quietly delivered. But in the Action of Detinue for recovery of personal chattels, if the wrongdoer were very per­verse, he could not be compelled to make res­titution of the identical thing taken or re­tained; but he had his election to deliver the goods or their value, an imperfection in the Law, which resulted from the Nature of the Judgment and the methods of Execution em­ployed.7


Execution Against Goods ci Profits of Land THE only Judgments given by the Com­mon-Law Courts were those for the delivery of possession, or for the recovery of a debt or damages. By the Common Law a man could procure satisfaction for his money judgment from the goods and chattels of his debtor, or the present profits of his debtor’s land, by the Writs of then Facias and Levani Facias. The Writ of F’ieri Faciag
THE Writ of Fieni Facias is a Common-Law Writ of Execution, directed to the Sher­
7. For an enumeration and discussion of the various forms of executions In actions for the recovery of specific real or persoi,al property, see Martin, Clvi I Procedure at Common Law, c. XIV, Trial, Verdict, Judgment and Execution, Art. IV, ~ 382, pages 325— 327 (St. Paul 1905).

iff of the County where the Action is laid, commanding him that of the goods and chat­tels of the defendant, in his bailiwick, he cause to be made or levied, the sum of dam­ages, or the debt recovered, and have it be­fore the King at Westminster on the return day.8


This Writ was issuable against privileged persons, peers and the like, as against other common persons; and against executors and administrators, in which latter case, the Sheriff was commanded to make the dam­ages or debt out of the goods of the de­ceased.9 By this Writ, the Sheriff has au­thority to seize and sell all tangible goods and chattels of the defendant, to satisfy the Judgment.”
The Writ of Levani Facias

AT Common Law, because of the high es­teem in which real property was held, such property was not actually subject to Execu­tion for the payment of the plaintiff’s debts. Therefore, when the Writ of Levani F’acias issued, commanding the Sheriff to levy the plaintiff’s debt on the lands and goods of the defendant, the Sheriff in executing the Writ, levied only on the goods of the debtor, and the rents and profits of the land, but not on the land itself.” The Sheriff was authorized to continue collection of the rents and profits of the land until the satisfaction of the Judg­ment had been secured.


According to Martin, the Writ of Lerari Facias, was substantially superseded by the Writ of Elegit, which will be considered next ~12
8. 2 Tidd, The Practice of the Court of ICing’s 1~ench in i’ersonal Actions, c. XLI, Of Execution, 013 (1st Am.. ed., Philadelphia, 1807).
9. 3 Blacl10. Ibid.
U. Ibid.

12. ~Iartin, Civil Procedure at Common Lnw, e. XIV,

Trial, Verdict, Judgment anti Execution, Art. IV,

~92

JUDGMENT, EXECUTION AND APPELLATE REVIEW

Ch. 29

The Writ of Elegit

The Writ of Elegit was authorized by the Statute of Westminster II (1285), Chapter



18. By reason of this Writ, the Sheriff seiz­ed the goods and chattels of the defendant, empannelled a Jury, who appraised the goods and chattels so seized, and, except for oxen and beasts of the plough, thereafter deliv­ered them to the plaintiff at the price placed upon them in part satisfaction of the debt. If the goods and chattels proved insufficient to satisfy the Judgment, then one-half of his freehold lands were also delivered to the plaintiff, to be held until he had satisfied his Judgment or the debt out of the rents and profits thereof, or until the interest of the de­fendant in the land had expired. While hold­ing the land for this purpose, the plaintiff was called a Tenant by Elegit.’3
This Execution, or seizing of land under an Eleçjit, is of such high nature that after its issuance the body of the defendant could not be taken upon an? Other Writ; but where the Etegit could not be executed by delivery of lands for the reason that the defendant owned none, and where it appeared that any chattels and goods levied upon were not suf­ficient to satisfy the plaintiffs Judgment, the plaintiff might then sue out a Writ of Capias Ad Satisfaciendum.14
Tue Writ of Extendi Facias, or Extent

THE Writ of Extendi F’acias, or Extent, at Common Law, lay, first, for the debts owed to the Crown; second, on a Statute Merchant or Statute-Staple, or Recognizance in the Nature of a Statute-Staple; and third, on a


Execution, 383, Executions In Actions for the Recovery of Money, 325 (St. Paul 1005).
13. 3 Blaekstone, Commentaries on the Laws of England, c. XXVI, Of E,ecution, 418 (Worcester, 1790).
14. 2 Tidd, The Practice of the Court of King’s Bench In Personal Actions, e. XLI, Of Execution, 042 (1st Am. ed., Philadelphia, 1807).

Judgment in an Action of Debt against an heir, on the obligation of his ancestor.’~


The debts owed to the King are either of Record, or Not of Record, but in both cases the Execution for them is a Writ of Extent, which is either an immediate extent, or one in aid of the King’s Debtor. As to debts Not of Record, the Remedy for recovery of them was governed by the Statute of 33 Her4. VIII, c. 39, 5 Statutes at Large 115 (1541), which provided that all obligations and specialties made for any cause touching the King or his heirs, were to be of the same effect as writ­ings obligatory acknowledged according to the Statute of the Staple at Westminster.
The Execution of this Writ was directed against the body, lands and goods of the Crown debtor. And the Sheriff was com­manded to inquire by a Jury what goods and lands the defendant was seized of, to ap­praise and extend them, and to take and seize the same into the King’s hands.
In the court of Exchequer, under a prac­tice recognized and controlled by Statutes, a debtor of the Crown might invoke in his be­half, the Writ of Extendi Facias, for the pur­pose of collecting a debt of equal amount due him from any subject, the theory being that without the aid of such Writ the Crown might be unable to collect its claim against its debtor. Such a Writ could also be in­voked by a surety of a debtor to the Crown who had paid the debt of the Crown Debtor. As so used the writ was called a Writ of Extendi Facias in Aid, as opposed to a Writ of Extendi Facias in Chief, where it was em­ployed only to collect debts directly due to the Crown.
The Writ of Capias Ad Satisfacienduin

The ordinary Common-Law Method of en­forcing a Judgment where money only is recovered, as damages or a debt and not any specific chattel, is now, as it anciently was,

15. Id. at 043.

Sec. 317


THE EXECUTION

59a

by seizure and sale of the property of the defendant. Execution against the person was, however, at an early date extended from criminal procedure, so that the body of the debtor was or might be imprisoned until satisfaction was made for the debt, costs or damages.

This species of Execution was by a Writ of Capias Ad Satisfaciendum, and was assumed by the Courts to be availaNe wherever the defendant was liable to be taken upon a writ of Capias Ad Res’pondendum, to compel ap­pearance at the beginning of the suit, or as a provisional remedy and security for the Judgment. At first this Writ was available to subject to imprisonment the body of the defendant in Trespass Vi Et .~4rrnis only.16 It was then extended to the Actions of Debt and Detinue by the Statute of 25 Edw. Ill, c. 17, 2 Statutes at Large 59 (1350), and to the Action on the Case in 1503.” The original exemption from arrest at Common Law was probably due to feudal reasons, rather than to a regard for personal liberty.
Where a defendant is at large when the Writ issues, it commands the Sheriff to take body of the defendant, to keep him safely, so that he may have his body in Court on the return-day to satisfy the plaintiff of the debt or damages recovered. When the de­fendant was already in custody, there was no occasion for the Writ. The effect of this Writ, taken after Judgment, was to deprive the defendant of his liberty until he made satisfaction of the debt or damages.18 If he
18. Forsythe v. Washteraw circuit Judge, 150 Mieb.

633, 147 NW- 540 (1014).



17. 10 Hen. VII, C. 9, 4 Statutes at Large 91 (1503).
18. For a discussion of a series of statutes relieving the harsh technicalities of Exeeution against in­solvent debtors, see Tidd, The Practice of the Court of King’s Bench In Personal Actions, c. XLI, Of Execution, 962 (1st Am. ed., Philadelphia, 1807); In­cluding the Lords Act, 22 Ceo, II, c. 28, § 13, 22 Statutes at Large 495 (1750); 26 Ceo. III, e. 44, 35 Statutes at Large 510 (1786); 33 Ceo. ur, c. 5, 39 Statutes at Large 24 (1703); 39 Ceo. 111, C. 50, 42 Statutes at Large 238 (1798).

did not make satisfaction, he had to remain in custody, at his own expense or the charity of others.th
And the fact that the Writ, among other things, took a man’s liberty, led to great hardship and injustice, as is well portrayed in the writings of Dickens.20 In the Eight­eenth Century, by Rules of the King’s Bench Prison, by Rules of court, and by Statute, steps were taken to reduce the hardships of poor debtors confined in prison on Civil Process. Thus, if a prisoner ten­dered sufficient security, he was permitted his freedom within certain limits outside the jail walls. By the Statute of 32 Geo. II, c. 28,
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