FIRST NATIONAL BANK OF BOSTON vs. MARCEL L. BERNIER & others [Note 1]

JACOBS, J. More than six years after obtaining a money judgment [Note 2] against the defendants (debtors), from which no appeal

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was taken, the plaintiff (bank) sought to obtain a late issuance of an execution. A Superior Court judge allowed the bank's motion without evidentiary hearing or comment. The debtors argue that the allowance of the motion is in direct contravention of G. L. c. 235, s. 17, which prohibits an original execution from being issued more than one year after final judgment has been entered [Note 3]. We reverse the allowance of the motion and remand for further proceedings in the Superior Court.

General Laws c. 235, s. 17, limits the issuance of original executions to the one-year period after entitlement thereto, subject to the exhaustion or lapse of rights to appellate review [Note 4]. Section 17 has been a part of our statutes in several versions since 1692. St. 1692-3, c. 24, s. 3. The critical time limitation language of s. 17 has not varied in its essential command since that time [Note 5]. That language is clear and unambiguous, Hoffman v. Howmedica, Inc., 373 Mass. 32, 37 (1977), and the use of the words "shall not" in limiting the time of issuance of an original execution imports an absolute prohibition to public officers. See Washington Natl. Bank v. Williams, 188 Mass. 103, 105-106 (1905) (the clerk "could not," without consent of the debtor, issue an execution outside the time limits of the predecessor statutes of s. 17); Hashimi v. Kalil, 388 Mass. 607, 609-610 (1983).

While the bank asserts there is a dearth of case law on this issue, we conclude there are sufficient cases that speak clearly

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and uniformly on the time limitation. After the entry of a judgment, "the law awards the execution. . . . There is no judicial discretion to be exercised on the subject; the party may demand it of right, within the limitations as to time prescribed by the statute." Boston v. Santosuosso, 308 Mass. 202, 206 (1941), quoting from Briggs v. Wardwell, 10 Mass. 356, 357 (1813). While those cases principally involved issues of how soon after judgment a party is entitled to take out an execution, the Briggs court indicated, id. at 358, that "after the expiration of the year" the issuance of an original execution would not be lawful. In Pease v. Morris, 138 Mass. 72, 74 (1884), the court, in referring to Pub. Sts. 1882, c. 171, s. 16, a predecessor of c. 235, s. 17, stated that an "original execution . . . must issue within [one year of a judgment]." Compare Nickols v. Foster, 7 Mass. 62 (1810) (without citation to a statute, the court refused to stay execution "because the year would expire, within which execution must issue"); Washington Natl. Bank v. Williams, supra at 105-106 (citing the 1783, 1836, 1860, and 1882 predecessors of c. 235, s. 17, the court stated, "for more than a century it has been provided that no original execution shall be issued within twenty-four hours after judgment, nor after one year has expired[,]" from the time a party is entitled to it). We have found no case, nor has one been cited to us, that suggests there are any exceptions to the strict ministerial observance of the one-year limitation during which an original execution may be obtained.

General Laws c. 235, s. 19, states in relevant part as follows: "If a judgment remains unsatisfied after the expiration of the time for taking out execution thereon, the creditor may obtain a new execution by motion to the court in which such unsatisfied judgment was rendered, or he may at any time after the judgment, subject to section twenty of chapter two hundred and sixty, bring a civil action thereon." Although the bank correctly recognizes that this section provides, under the second clause, that a party may bring a civil action on the judgment [Note 6], it has not argued that it is entitled to pursue the issuance of a "new"

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execution under the first clause. Nevertheless, we consider whether the judge's allowance of the bank's motion may have been proper under this section.

We first observe that both s. 17 and s. 19 speak of the issuance of a "new" execution. We therefore "follow the canon of statutory construction that where words are used in one part of a statute in a definite sense, they should be given the same meaning in another part of the statute," Beeler v. Downey, 387 Mass. 609, 617 (1982), and we do not regard any of the words of the statutes as surplusage. Meunier's Case, 319 Mass. 421, 423 (1946). We also construe each clause or phrase with reference to every other clause or phrase so that "all parts shall be construed as consistent with each other so as to form a harmonious enactment." Selectmen of Topsfield v. State Racing Commission, 324 Mass. 309, 312-313 (1949).

Section 17 provides that a court may order a new execution for the amount remaining due where "any execution," original or successive, is returned unsatisfied for "any reason [Note 7]," and without "further judgment or determination." Hale v. Wheeler, 264 Mass. 592, 595 (1928). Cf. Honer v. Wisniewski, 48 Mass. App. Ct. 291, 295-296 (1999) [Note 8].

A new execution under s. 19 may be obtained where a judgment "remains unsatisfied after the expiration of the time for taking out execution," but may be acquired only by motion.

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Historically, the statutes preceding s. 19 made the issuance of a new execution subject to first obtaining a writ of scire facias [Note 9]. Scire facias was [a] judicial writ directing a debtor to appear and show cause why a dormant judgment against him should not be revived." Black's Law Dictionary 1346 (6th ed. 1990). After that writ was abolished, see Mass.R.Civ.P. 81(b), 365 Mass. 841 (1974), and s. 19 rewritten to conform with the new Rules of Civil Procedure, a new execution could be obtained by motion [Note 10]. Under s. 19, because an execution is being sought without any of the information which would be available to a court from the return of a previous execution as under s. 17, see note 8, supra, the statute requires the level of process and judicial scrutiny commensurate with our motion practice. Thereby, the court's consideration of the motion and the adverse party's responses will conform to the procedure formerly followed under a writ of scire facias. A debtor therefore is provided with an opportunity to raise a claim of partial or total satisfaction of the judgment. If a new execution could not be obtained without the prior issuance of an original or a successive execution, the first clause of s. 19 would be superfluous to s. 17. In that case, a creditor who did not obtain an original execution within the time permitted by s. 17, would not be able to enforce

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an otherwise valid judgment without commencing a new civil action on the judgment.

Our interpretation that new executions are available under both s. 17 and s. 19, but under different circumstances and procedures, not only is faithful to the process inherent in the antecedents of s. 19, but gives meaning to all of its provisions as well as those of s. 17 [Note 11]. Under s. 17, a new execution may be issued ministerially and upon return of an unsatisfied execution, while under s. 19, a new execution may be issued only on motion and by order of a judge where a judgment is unsatisfied and no original execution has been issued. This interpretation also serves the interest of judicial economy because it permits the creditor to pursue satisfaction of the judgment without having to file an additional civil action.

We conclude, in the circumstances of this case, that it was error for the judge summarily to allow the bank's motion, but because of the view we have taken of c. 235, s.s. 17 & 19, we remand to permit the judge to consider the bank's motion, and any response of the debtors [Note 12], and to conduct a hearing if requested, to determine whether a new execution should be issued under the first clause of s. 19 for any amount of the judgment not satisfied.

So ordered.