O.C.G.A. § 9-12-64 (2019)
Revival on motion after service of scire facias; when defendant entitled to jury trial
In all cases of scire facias to revive a judgment, when service has been perfected, the judgment may be revived on motion at the first term without the intervention of a jury unless the person against whom judgment was entered files an issuable defense under oath, in which case the defendant in judgment shall be entitled to a trial by jury as in other cases.
History
(Orig. Code 1863, § 3527; Code 1868, § 3550; Code 1873, § 3609; Code 1882, § 3609; Civil Code 1895, § 5383; Civil Code 1910, § 5978; Code 1933, § 110-1008.)
Annotations
JUDICIAL DECISIONS Inquiry into merits of original action by writ to revive. - In no case can the merits of an original judgment be inquired into by the defendant on a writ to revive the judgment. McRae v. Boykin, 73 Ga. App. 67, 35 S.E.2d 548 (1945), cert. denied, 328 U.S. 844, 66 S. Ct. 1024, 90 L. Ed. 1618 (1946). When a defendant is served and appears and pleads in the original suit, the defendant cannot inquire into the merits of the original judgment on a writ to revive the judgment. It is not error to sustain a demurrer (now motion to dismiss) and strike the defendant’s answer in such a proceeding. McRae v. Boykin, 73 Ga. App. 67, 35 S.E.2d 548 (1945), cert. denied, 328 U.S. 844, 66 S. Ct. 1024, 90 L. Ed. 1618 (1946). Revival of judgment must be pled against all defendants. - Right to a revival of the judgment against all the defendants being a mere personal right of each defendant, the defendant must avail of it in answer to the writ of scire facias to
revive the judgment; a scire facias being in the nature of a suit in which it is incumbent upon the defendant to plead. American Nat’l Bank v. Hodges, 41 Ga. App. 717, 154 S.E. 653 (1930). Res adjudicata applies to scire facias proceeding. - On the general principle of res adjudicata, which applies equally to proceedings by scire facias as to any other action or suit, and on the further ground that this method of reviving a judgment is merely a supplementary step in the original action, the defendant is absolutely precluded from going behind the judgment and offering in defense to the scire facias any matter which existed before the rendition of the original judgment and which might have been presented in the former proceeding. McRae v. Boykin, 73 Ga. App. 67, 35 S.E.2d 548 (1945), cert. denied, 328 U.S. 844, 66 S. Ct. 1024, 90 L. Ed. 1618 (1946). Cited in Fielding v. M. Rich & Bros. Co., 46 Ga. App. 785, 169 S.E. 383 (1933).
RESEARCH REFERENCES Am. Jur. 2d. - 46 Am. Jur. 2d, Judgments, § 405 et seq.
C.J.S. - 49 C.J.S., Judgments, § 867.