Scire Facias

• Author: Jeffrey Lehman, Shirelle Phelps

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[Latin, Made known.] A judicial writ requiring a defendant to appear in court and prove why an

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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...