Dictionary:
sci·re fa·ci·as (sī'rē fā'shē-əs, skē'rĕ fä'kē-äs')  |
[Middle English, from Latin scīre faciās, you should cause (him) to know (a phrase that occurs in the writ) : scīre, to know + faciās, second person sing. present subjunctive of facere, to do, make.]
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| Law Encyclopedia: Scire Facias |
[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.
| WordNet: scire facias |
The noun has one meaning:
Meaning #1:
a judicial writ based on some record and requiring the party against whom it is brought to show cause why the record should not be enforced or annulled
| Wikipedia: Scire facias |
In English law, a writ of scire facias (from the Latin meaning "to cause to be known") was a writ founded upon some judicial record directing the sheriff to make the record known (scire facias) to a specified party, and requiring that defendant to show cause why the party bringing the writ should not be able to cite that record in his own interest, or why, in the case of letters patent and grants, the record should not be annulled and vacated. In the United States, the writ has been abolished under federal law but may still be available in some state legal systems.
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The Writ of Scire Facias was created in 1285 during the 13th year of the reign of Edward I by the English Parliament in the Second Statute of Westminster. 1 Statutes of England, p.109. Robert Burnell (?-1292) was Lord Chancellor. The Writ of Quo Warranto was created during this same period. The Writ of Scire Facias "is in nature a bill in Chancery." M. Bacon, Abridgement of the Law, Vol. 8, Scire Facias, at 620 (rev.ed. 1852); W. Blackstone, Commentaries, Vol.III, at *260 ("When the Crown hath unadvisedly granted any thing by letters patent, which ought not to be granted, or where the patentee hath done an act that amounts to a forfeiture of the grant, the remedy to repeal the patent is by writ of scire facias in chancery").
Proceedings in scire facias were regarded as a form of action, and the defendant could plead his defense as in an action.[1] They were analogous to quo warranto proceedings.[2]
In 1684, the royal charter of the Massachusetts Bay Colony was rescinded by a writ of scire facias for the Colony's interference with the royal prerogative in founding Harvard College and other matters.[2][3]
By the beginning of the twentieth century, the writ was of little practical importance. Its principal uses were to compel the appearance of corporations aggregate in revenue suits, and to enforce judgments against shareholders in companies regulated by the Companies Clauses Act 1845, or similar private acts, and against garnishees in proceedings in foreign attachment in the Lord Mayor's Court.[1][4] It was not used in Scottish law.[1]
Proceedings by scire facias to repeal letters patent for inventions were abolished by the Patents, Designs and Trademarks Act 1883, and a petition to the court substituted.[1]
The writ was abolished on 1 January 1948 by the Crown Proceedings Act 1947.[5]
Some American legal scholars have suggested that impeachment may not be the sole method to remove a federal judge from office, pointing to scire facias as an alternative.[6] This, however, ignores Rule 81(b) of the Federal Rules of Civil Procedure, which states: "The writs of scire facias and mandamus are abolished. Relief heretofore available by mandamus or scire facias may be obtained by appropriate action or by appropriate motion under the practice prescribed in these rules."
Under the law of some states, Georgia and Texas for example, an action in scire facias may be used to revive a dormant judgment if brought in a timely fashion. An action on debt, reciting that the dormant judgment remains unpaid, may be used for the same purpose. See O.C.G.A. § 9-12-61; Texas Civil Practice & Remedies Code § 31.006.
This article incorporates text from the Encyclopædia Britannica, Eleventh Edition, a publication now in the public domain.
This entry is from Wikipedia, the leading user-contributed encyclopedia. It may not have been reviewed by professional editors (see full disclaimer)
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 | Dictionary. The American Heritage® Dictionary of the English Language, Fourth Edition Copyright © 2007, 2000 by Houghton Mifflin Company. Updated in 2007. Published by Houghton Mifflin Company. All rights reserved. Read more |
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| Law Encyclopedia. West's Encyclopedia of American Law. Copyright © 1998 by The Gale Group, Inc. All rights reserved. Read more |
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| WordNet. WordNet 1.7.1 Copyright © 2001 by Princeton University. All rights reserved. Read more |
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| Wikipedia. This article is licensed under the GNU Free Documentation License. It uses material from the Wikipedia article "Scire facias". Read more |
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