
    LYON v. FORD.
    Pleading and Practice; Scire Facias; Bill of Exceptions.
    The decision .of a trial court made upon a trial by the court without a jury of an issue of nwl tiel record in proceedings upon scire facias to revive a judgment, cannot be reviewed by this court, unless a bill of exceptions has been duly taken, setting forth the record that was offered in evidence and the ruling of the court thereon; following Otterback v. Patch, 5 App. D. C. 69.
    No. 493.
    Submitted October 18, 1895.
    Decided December 2, 1895.
    Hearing on an appeal by the plaintiff from a judgment for the defendants in the trial by the court of an issue raised by a plea of mil tiel record to a sci. fa. on a judgment.
    
      Affirmed.
    
    The Court in its opinion stated the case as follows :
    On October 17, 1876, the appellant, Isaac S. Lyon,.recovered a judgment in the Supreme Court of the District of Columbia against the appellees, Samuel Ford and Charles H. Holden,- for the sum of $810, with interest on different •parts thereof at different rates. On October 16, 1877, a •writ of fieri facias was issued on the judgment. On October 16, 1888, the appellant filed-an order in the office of the clerk'of that court for the issue of a writ of scire facias to revive the judgment. For some reason not apparent on the record before us, this writ was issued and addressed only to one of the defendants, Samuel Ford; and on him only was service had. He appeared and pleaded mil tiel record, in due form.-
    Subsequently, upon motion of the appellant, there was an order of court made that the writ should be taken, as amended so as to include both of the defendants in the summoning part, instead of the defendant Ford alone. This order was made on February 27, 1892 ; and on the same day a new writ of scire facias was issued addressed to the defendants, without naming either, except in the caption. This was returned nihil as to Holden, and an alias writ thereupon issued was similarly returned.
    Appeal was taken by Ford to the General Term of the Supreme Court of the District of Columbia from the order of the special term allowing the amendment of the writ as stated; and on May 16, 1892, the action of the special term was reversed and the order vacated.
    There was, then, a replication filed by the appellant to the defendant Ford’s plea of nul tiel record; 1st, traversing the issue, and, 2d, alleging the bankruptcy of Holden and his. departure from the jurisdiction. A demurrer to this replication for duplicity, immateriality, and departure from the declaration, was overruled; but a motion to strike out the second replication was allowed.
    At last, the contest upon technicalities was terminated by •a -stipulation between counsel to submit the trial of the issue in the cause to the court upon the record, as soon as counsel could be heard; and the court, on May 4, 1895, after argument by counsel, found the issue in favor of the defendant ; and judgment was accordingly entered in his favor. From that judgment the plaintiff has prosecuted the present appeal.
    
      Mr. Henry E. Davis and Mr. Isaac S. Lyon for the appellant.
    
      Mr. Samuel R. Bond for the appellee.
   Mr. Justice Morris

delivered the opinión of the Court:

There is no bill of exceptions in this case'; the appellant claims that none is needed; but we do not see what there is for us to review without a bill of exceptions.

In the case of Otterback v. Patch, decided on December 12, 1894, which was nearly five months before the trial of the present cause in the court below a fact which should have been sufficient notice to the appellant — we held that “in the trial of an issue made on a plea of nul tiel record to a scire facias on judgment, the court decides by an inspection of the record; but the record inspected makes no part of the proceedings of the case on trial; and the decision of the lower court can be reviewed only by means of a bill of exceptions, setting forth the record offered, and the ruling thereon to which exception is taken. Dorsey v. Whitcroft, 1 H. & J. 463 ; Ayres v. Kain, 3 G. & J. 24; Mullikin v. Duvall, 7 G. & J. 355 ; Le Strange v. State, 58 M. 41.” 5 App. D. C. 69.

The argument of counsel for the appellant now is, in substance, that the ruling in that case, which was identical with the ruling of the Court of Appeals of Maryland in the case of McKnew v. Duvall, 45 Md. 501, was based upon a misapprehension of the authorities ; and that, in the trial of an issue upon a plea of nul tiel record, a bill of exceptions is necessary only when the record offered in evidence is the record of another and different suit from that on trial. It is urged that in all the cases cited, except in that of McKnew v. Duvall, in 45 Md., the suits were either independent actions in debt upon judgment or actions upon injunction bonds, where necessarily the record offered in evidence was the record of a separate and distinct suit, of which the court would not take judicial cognizance without the actual production of such record; but that proceedings in scire facias to revive a judgment are but a continuation of the same suit in which the judgment was rendered, and therefore no bill of exceptions is required to set forth the rulings of the court upon the inspection of the preceding record.

If the question were an open one and not concluded by repeated adjudications, we would not be disposed to depart from the determination reached in the case of Otterback v. Patch.

It is very true that the cases of Dorsey v. Whitcroft, 1 H. & J. 463 ; Ayres v. Kain, 3 G. & J. 24; and Boteler v. State, 8 G. & J. 359, were all actions of debt upon judgment, and that the records offered in evidence under the issue raised by a plea of nul tiel record were records of other suits. Also, in the case of Le Strange v. State, the suit was upon an injunction bond; and the record offered in evidence, or which was required to be offered in evidence, was the record of the proceedings in the equity suit in which the injunction bond had been given. In none of these cases was the record offered in evidence embodied in any bill of exceptions ; and the appellate court very properly held that there was nothing before it for review.

The case of Mullikin v. Duvall, 7 G. & J. 355, was a case of scire facias to revive judgment, where pleas were filed of nul ticl record and the statute of limitations. The court in its opinion said that no question in relation to the issue raised by the plea of nul tiel record was to be considered or reviewed by the court, and devoted its consideration of the case exclusively to the point of law raised by a demurrer to a replication to the plea of the statute of limitations. The court below had decided generally in favor of the defendant; and we may justly assume that the statement of the appellate tribunal that there was nothing for it to review under the plea of nul ticl record was due to the fact that the case had been brought up by appeal and not upon writ of en or, and that no bill of exceptions had been taken.

But in the case of McKnew v. Duvall, 45 Md. 501, the question was distinctly raised and definitely decided. That was a proceeding in scire facias to revive a judgment, where a plea of nul tiel record was interposed, upon which issue was joined. The trial court decided the issue in favor of the plaintiff; and the defendants appealed, but took no bill of exceptions. The Court of Appeals of Maryland there said :

“ At the trial of the issue of nul tiel record, it is stated that the plaintiff offered in evidence the record of the original judgment, upon which the writ of scire facias was issued ; and there is set out in the transcript what purports to be the record thus offered. But there was no bill of exception taken, certifying that such was the record offered by the plaintiff, and that its admissibility or sufficiency was excepted to by the defendants ; and consequently none of the questions supposed to arise on that record are before this court for review. The plea of mil tiel record merely put in issue the existence of the record as recited in the scire facias ; the replication to such plea simply reasserting the existence of the record, and concluding with a prayer that it might be viewed and inspected by the court. In the trial of this issue by the court, if the defendants intended to have the decision of the court below reviewed here, they should have tendered a bill of exception, setting forth the record offered, the ruling of the court with respect to it, and the exception thereto. Otherwise the record offered formed no part of the record of the case on trial, and no question can be raised in this court in respect to its admissibility or sufficiency. This is the well established rule of procedure in the courts of this State, as will abundantly appear from the cases of Dorsey v. Whitcroft, 1 H. & J. 463 ; Ayres v. Kain, 3 G. & J. 24, and Boteler & Belt v. State, Use of Chew, 8 Gill. & Johns. 359.”

Now, the principle involved in all these cases is precisely the same. While a writ of scire facias is to a certain extent merely a step towards the execution of a previously existing judgment, it is also in effect and to all intents and purposes a declaration, not substantially different from a declaration in an action of debt on judgment, to which any proper defence may be interposed by way of plea or demurrer. To a writ of scire facias to revive a judgment and to an action of debt on the same judgment, the defences would be precisely the same, with the same limitations ; and the causes would go on to trial in the same way. One of the most usual pleas in either case would be that of nul tiel record; and that plea would raise an issue of fact, although triable by the court and not by a jury. Being an issue of fact, and not an issue of law, there is no mode known to our law whereby the action of the trial court in regard to it can be reviewed in an appellate court, except by means of a bill of exceptions. While we might know what record ought to have been offered in support of the affirmative side of the issue,-we cannot know what record was actually produced or inspected or whether any record at all was produced, or whether the plaintiff .did not make default and fail to produce any record. We cannot assume that everything was- done in a trial before a trial court that should naturally have been; We can only know properly what happened in such cases by the certificate of the trial judge appended to a bill of exceptions.

No better illustration of the necessity as well as propriety of a bill of exceptions in such cases need be sought than the case now before us. Here there was a stipulation of the parties that the cause should be submitted to the court upon a certain day, “to be tried by the court upon the record.” Now, the issue was one which, under our law, was to be tried by the court alone, without the intervention of a jury ; and the stipulation added nothing to the power of the court in that regard and detracted nothing from it. The stipulation merely fixed a time for. the trial of the issue upon the plea of nul tiel record, which was the only issue then pending and provided that this should be tried by the court “ upon the record.”

We are now asked to assume that this meant the record of the cause prior to the issue of the writ of scire facias; and we are also asked to assume that this record was actually submitted at the trial for inspection by the court. Let us suppose that we may assume all this, in the face of the absence of all proof of what happened at the hearing by the court; yet that record is not before us. There is nothing in the transcript before us which even purports to have been the record offered in the court below, or inspected by that court. In this transcript, prior to the order for the issue of the writ of scire facias, we have copies of what appear to be the- original declaration in the case, an affidavit in support of it, a verdict of a jury, the defendants, it is said, not appearing, and a judgment for the plaintiff for the amount claimed in the declaration; but we do not know that this was all that was submitted to the court below; and we do not know that even these papers were submitted to that court. But even assuming that this was the record that was produced upon the hearing before the trial court and inspected by that court, the record is fatally defective upon its face, inasmuch as it shows no service of process upon the defendants, and therefore no jurisdiction in the court to render judgment against them. If this was all the record that was offered, it simply showed the judgment to have been an utter nullity. In all probability there was service of process and the judgment was a valid judgment; but how are we to know that fact from the transcript' before us ? In other words, we are entii'ely in the dark as to what passed in the trial before the court below, what there was before that court upon which to rule, and what its rulings actually were. A bill of exceptions in due form would have enlightened us fully upon the subject.

The ruling in the case of Otterback v. Patch, introduces no novelty into our practice. It is evident that it was the opinion of the Supreme Court of the United States in the case of Walden v. Craig, 14 Pet. 147, that the proper mode in which to bring before an appellate tribunal for review the adjudication of a trial court upon the issue raised upon proceedings in scire facias by a plea of nul tiel record, was by bill of exceptions. For the court in that case was careful to say that “a bill of exceptions spread upon the record the evidence that was before the [trial] court on the issue of nul tiel record; ” and this evidence consisted solely of the record of the proceedings in the cause anterior to the issue of the writ of scire facias.

It was recognized by the Supreme Court of the District of Columbia in the cases of Loeber v. Moore, 20 D. C. 1, and Willett v. Otterback, 20 D. C. 324, therein following the decision of the Supreme Court of the United States in the case of Dickson v. Wilkinson, 3 How. 57, that, in proceedings in scire facias to revive a judgment, the proceedings in the original case must be regarded as collateral for all the purposes of defence, and therefore to be used in the cause in the same way that any other collateral proceeding could be used. And it may be added that, if this were not so, and if the evidence'introduced in support of the issue on nul tiel record were not required to be spread upon the record by bill of exceptions, when a review of the ruling of the trial court is desired in an appellate tribunal, there would not be in any event either necessity or propriety for a plea of nul tiel record in proceedings in scire facias or for a replication to such plea. If the previous record is imported as a matter of course into such proceedings, a demurrer would serve all the purposes of such plea or replication; and the plea or replication would be improper.

Both upon reason, therefore, and upon authority, we must re-affirm the ruling made in the case of Otterback v. Patch, that we cannot review the decision of the court below made upon the trial by the court of the issue of nul tiel record in proceedings upon scire facias to revive judgment, unless a bill of exceptions has been duly taken, setting forth the record that was offered in evidence and the ruling of the court thereon.

This being our conclusion, it is clear to us that there is nothing in the case now before us which we can review, and that it is unnecessary to discuss the other questions raised by the appellant.

We must affirm the judgment of the Supreme Court of the District of Columbia with costs. And it is so ordered.  