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Related to scire facias: scire facias sur mortgage
[Latin, Made known.] A judicial writ requiring a defendant to appear in court and prove why an existing judgment should not be executed against him or her.
In the law, scire facias is a judicial writ that is brought in a case that has already been before a court. Writ is the old English term for a judicial order. Some states still use the term. A scire facias writ commands the person against whom it is brought to appear before the court and show why the record should not be resolved in favor of the party who brought the writ.
The scire facias writ originated in England, and its use was adopted by the American colonists. In eighteenth-century England, the writ was used to repeal letters patent. Letters patent were letters written by the king or queen that granted inventors exclusive patent rights over their inventions. Any person who thought a patent was invalid based on false information or the existence of a prior invention could ask the royal Court of Chancery to request the presence of the patent holder to justify the patent. If there was a genuine dispute about the validity of the patent, the patent holder could request a trial before a jury in the Court of King's Bench. The jury resolved any issues of fact, and then the case was sent back to the Chancery. The chancellor made the final judgment on whether to revoke the patent.
The scire facias writ did not survive in patent law. Under modern law, only a person with a case or controversy with respect to a particular patent may challenge the patent. Also, a claim of patent invalidity is not tried before a royal court but a federal patent court. However, the issue of patent validity may be tried before a jury, much like the old scire facias writ.
In modern practice, the writ of scire facias is used in the enforcement and collection of judgments. When a plaintiff in a civil case obtains a money judgment against a defendant, the court order to pay the judgment may expire after a certain number of years if the judgment remains unpaid. State and federal laws allow the plaintiff to make a motion to the court before the time period expires to continue the effect of the court's order. If the plaintiff fails to make such a motion, she may file a writ of scire facias to revive the judgment. The defendant would then have to appear before the court and explain why the judgment should not be revived. If the defendant has already paid the plaintiff, or if the defendant has evidence that he owes the plaintiff nothing, the defendant may present evidence and shift the burden of proof to the plaintiff.
If the defendant is unable to defend his failure to pay the judgment, the court will order execution of the judgment. The court may order the defendant to submit to a financial status examination, to sell property to satisfy the judgment, or to take other measures to satisfy the judgment.
The writ of scire facias has been abolished on the federal level and in most states. Plaintiffs may revive an expired or dormant judgment by filing a civil claim in a court of general jurisdiction and asking for revival of the judgment. The courts that have eliminated the writ have found its complex procedures unsuited to the needs of modern society.
In some jurisdictions that still permit a scire facias writ, the writ has fallen into disuse. In Connecticut, for example, the judicially created creditor's bill has supplanted the writ. This bill creates an equitable remedy for a person who cannot enforce a judgment in a court of law. A court provides an equitable remedy based not on legal authority but on principles of fairness.
States that maintain the scire facias writ require it to be filed within a certain time after expiration of the judgment. In Texas, for example, the Civil Practice and Remedies Code specifies that a scire facias writ may be brought no later than two years after the date that the judgment became dormant (Tex. Civ. Prac. & Rem. Code Ann. § 31.002 [West 1995]).
The term scire facias also is used in the law to describe a particular form of judicial foreclosure of a mortgage. After a mortgagor of property defaults on payment obligations, the mortgagee may obtain a writ of scire facias, which is an order commanding the respondent to appear and explain why the mortgaged property should not be sold to satisfy the mortgage debt.
Reisner, Edward M. Practising Law Institute (PLI). 1995. Using Litigation Support Programs and Graphic Evidence Media in Patent Cases, by Patents, Copyrights, Trademarks, and Literary Property Course Handbook series, PLI order no. G4-39.
scire faciasa judicial writ founded upon some record, such as a judgment, letters patent, etc., requiring the person against whom it is brought to show cause why the record should not be enforced or annulled.
SCIRE FACIAS, remedies, practice. The name of a judicial writ, founded upon
some record, and requiring the defendant to show cause why the plaintiff
should not have the "advantage of such record; or, when it is issued to
repeal letters-patent, why the record should not be annulled and vacated. 3
Sell. Pr. 187; Grah. Pr. 649; 2 Tidd's Pr. 982; 2 Arch. Pr. 76; Bac. Abr.
2. It is, however, considered as an action, and in the nature of a new original. Skin. 682; Com. 455.
3. The scire facias against a bail, against pledges in replevin, to repeal letters-patent, or the like, is an original proceeding; but when brought to revive a judgment after a year and a day, or upon the death or marriage of the parties, when in the latter case one of them is a woman; or when brought on a judgment quando, &c., against an executor, it is but a continuation of the original action. Vide 1 T. R. 388. Vide generally, 11 Vin. Ab. 1; 19 Vin. Ab. 280 Bac. Ab. Execution, H; Bac. Ab. h.t. 2 Saund. 72 e, note, 3; Doct. Pl. 436 Bouv. Inst. Index, h.t.