Town & Country Jewelers, Inc. v. Andrew Timothy Sheriff
Case Details
- Judge(s)
- Judge W. Neal McBrayer
- Status
- Published
- Procedural Posture
- appeal from trial court denial of motion for scire facias
Related Laws
No specific laws identified for this ruling.
Outcome
Affirmed as modified. Trial court had subject matter jurisdiction to consider the motion for scire facias, but revival of judgment does not apply where statute of limitations has expired.
Excerpt
Over ten years after entry of a judgment, the judgment creditors filed a motion for scire facias to revive the judgment. The trial court denied the motion based on a determination that expiration of the statute of limitations deprived the court of subject matter jurisdiction. On appeal, the judgment creditors argue that their motion was timely because the debtor revived the debt by agreeing that the debt was nondischargeable in bankruptcy. We conclude that the trial court possessed subject matter jurisdiction but that revival does not apply. So we affirm as modified.
Similar Rulings
<p>Appeal from judgment of the General Term of the Supreme Court in the third judicial department, entered upon an order made ¡November 22, 1892, which, affirmed a judgment in favor of defendants entered upon an order dismissing the complaint on trial and also affirmed an order denying a motion for a new trial.</p> <p>This was a judgment creditor’s action brought by plaintiff, as administratrix of David Kain, deceased, to have adjudged and declared fraudulent and void as to her intestate, a transfer of certain real estate made by the defendant, Patrick Larkin, to his daughter, Mary E. Larkin, an infant.</p> <p>The material facts are stated in the opinion.</p> <p>The sufficiency of a pleading cannot be raised for the first time in the Court of Appeals. It cannot consider a matter or subject that has not been presented by adjudication to, and determined by, the subordinate court. It has no power to review errors not pointed out by exceptions taken at a proper time. (Code Civ. Pro. §§ 996, 1337; Hofheimer v, Campbell, 59 N. Y. 269; 271, 272 ; Delaney v. Brett. 51 id. 78, 82; S. O. Co. v. A. Ins. Co., 79 id. 506; Knapp v. Simon, 96 id. 291, 292; Duryea v. Vosburgh, 121 id. 57.) Under the liberal construction required to be given to a pleading by the Code of Civil Procedure (§ 519), the complaint sufficiently alleges that Patrick Larkin transferred, after the commencement of plaintiff’s suit on her lawful demand, the entire property, real and personal, of which he was the owner. (Zabriskie v. Smith, 13 N. Y. 330; Marie v. Garrison, 83 id. 23, 28 ; Sanders v. Soutter, 126 id. 196; Hale v. O. N. Bank, 49 id. 626; People v. Rider, 12 id. 433; Seeley v. Engell, 13 id. 548.) The cause of action set forth in the complaint is statutory, and the facts essential to the cause of action are alleged in the language of the statute. (Code Civ. Pro. § 1871; Cole v. Jessup, 10 N. Y. 103, 104; Ford v. Babcock, 2 Sandf. 518; R. R. Co. v. Robinson, 133 N. Y. 242; Knapp v. City of Brooklyn,
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