Lessee of Walden v. Craig's Heirs,
39 U.S. 147 (1840)

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U.S. Supreme Court

Lessee of Walden v. Craig's Heirs, 39 U.S. 14 Pet. 147 147 (1840)

Lessee of Walden v. Craig's Heirs

39 U.S. (14 Pet.) 147


In a scire facias to revive a judgment in ejectment where it is stated that the term recovered is yet unexpired, this is sufficient. It is not required that the term as laid in the declaration, and that facts showing its continuance should be stated.

When the court has given leave, on motion, to extend the term in a demise, and the amendment is specific, it is not necessary to interline it in the declaration. If leave to amend the declaration had been given generally and the amendments had not been interlined, it would be different.

In Kentucky there is no law which limits a revival of judgments, and at law, lapse of time can only operate by way of evidence. From lapse of time, and favorable circumstances, the existence of a deed may be presumed, or that an obligation has been discharged, but this presumption always arises under pleadings which would render the facts presumed proper evidence. A demurrer to a scire facias raises only questions of law on the facts stated in the writ of scire facias; no evidence is heard by the court on the demurrer, and consequently there is no presumption against the judgment on which the writ issued from lapse of time.

The marshal, on his return to a scire facias to revive a judgment in ejectment, stated that two of the defendants were dead. This return does not become matter of record, like the fact of service of the writ, stated in the return, and cannot be taken advantage of by demurrer. A plea in abatement was the proper method of taking advantage of the decease of those of the defendants who were deceased. On this plea, the plaintiff could have taken issue, and have had the facts ascertained by a jury.

To a scire facias to revive a judgment in ejectment it is not necessary to make the executors or administrators of deceased defendants parties, the subject matter in dispute being land, over which they have no control. The law is well settled that where a defendant in ejectment dies, the judgment must be revived against both his heirs and the terre tenants.

Service of process or notice is necessary to enable a court to exercise jurisdiction in a case, and if jurisdiction be taken in a case in which there has been no process or notice, the proceeding is a nullity. But this is only where original jurisdiction is exercised, and not a decision of a collateral question in a case where the parties are before the court.

After judgment, the parties are still in court for all the purpose of giving effect to it. And in the action of ejectment, the court having power to extend the demise after judgment, the defendant may be considered in court, on a motion to amend, as well as on any other motion or order which may be necessary to carry into effect the judgment. In no correct sense is this power of amendment similar to the exercise of an original jurisdiction between parties on whom process has not been served.

Page 39 U. S. 151

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