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Williams v. Fredenhagen

OPINION FILED MARCH 26, 1953

ELIZABETH WILLIAMS, APPELLANT,

v.

ARTHUR FREDENHAGEN, APPELLEE.



Appeal by plaintiff from the Circuit Court of Du Page county; the Hon. WIN G. KNOCH, Judge, presiding. Heard in this court at the October term, 1952. Reversed and remanded with directions. Opinion filed March 26, 1953. Released for publication April 13, 1953.

MR. JUSTICE ANDERSON DELIVERED THE OPINION OF THE COURT.

On November 17, 1951 Elizabeth Williams, plaintiff-appellant, filed her affidavit for scire facias against Arthur Fredenhagen, defendant-appellee, to revive a judgment entered November 19, 1931 in a case entitled Martha Thomas, plaintiff v. Arthur Fredenhagen, defendant, in the circuit court of Du Page county, Illinois. Proceedings to revive judgments by scire facias are governed by Ill. Rev. Stat., 1951, chap. 83, par. 24b [Jones Ill. Stats. Ann. 107.284(2)]. The statute provides that judgments in courts of record may be revived by scire facias within twenty years next after the date of such judgment. The clerk of the court, on the date that the affidavit was filed, issued a writ of scire facias which was served on the defendant shortly thereafter. The defendant filed a motion to dismiss the proceedings alleging in substance that the plaintiff had no interest in the judgment as sole heir of Martha Thomas who he claims was the original judgment creditor. Before there was a hearing on this motion, on April 4, 1952, the plaintiff filed a motion asking leave of court to amend her affidavit and the scire facias issued thereon. The motion alleged that the original judgment sought to be revived was entered of record in the name of Elizabeth Williams, plaintiff herein, and was not entered in the name of Martha Thomas. This motion also asked that an amended writ of scire facias be issued retroactive to the date of the filing of the original affidavit and writ. The trial court denied plaintiff's motion to amend and granted defendant's motion to dismiss. Plaintiff has appealed from this order.

Proceedings to revive a judgment by scire facias are wholly statutory. They are ancillary to the original judgment and generally speaking their purpose is to determine whether or not the judgment has been satisfied in whole or in part, so that if it has not been satisfied, the judgment creditor may sue out an execution and preserve the judgment and its lien. (Bank of Edwardsville v. Raffaelle, 381 Ill. 486; Waterbury Nat. Bank v. Reed, 231 Ill. 246.) The judgment debtor is summoned so that he may answer the proceedings in order to revive the judgment.

It follows that there must be in the first instance a valid judgment. If there is no valid judgment, it cannot be revived; if there is a valid judgment, only the judgment creditor or her privies may revive it. Defendant admits that he is the original debtor, but he contends that Elizabeth Williams, the plaintiff, is a stranger to the judgment and should not be permitted to obtain its revival. The nature and character of this purported judgment must be first determined.

It was stipulated by counsel that the following was a complete transcript of the common-law docket kept by the clerk of the circuit court of Du Page county, Illinois of the proceedings entitled Martha Thomas, plaintiff v. Arthur Fredenhagen, defendant and of all entries made therein:

To January Term 1931

Du Page County Circuit Court

Common Law General No. 16008

Attorneys Parties Action

Carl O. Bue Martha Thomas Trespass On The v. Case of Promises Arthur Fredenhagen

Judge Date Orders of Court

Fulton Apr. 28, 1931 Suggestion of death Shepherd Oct. 27, 1931 of Martha Thomas Newhall Nov. 3, 1931 and Elizabeth Williams Shepherd Nov. 19, 1931 heir at law substituted. Order of default (See Order) Stricken from Trial Call Upon Stipulation Jury waived. Cause submitted to Court. Judgment in sum of $1332.50 and costs. Judgment on findings.

It was also stipulated that on the same day as the purported judgment was entered, the judgment and execution docket kept by the clerk showed that an execution was issued on the judgment. The docket states under designation of parties "Parties, Martha Thomas, et al. vs. Arthur Fredenhagen." The execution was never returned. It was further stipulated that the judgment entered in the case of Martha Thomas v. Arthur Fredenhagen in the circuit court of Du ...


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