Графични страници
PDF файл
ePub

fess judgment, signed by Jos. S. Nichols, ment is rightly entered. (Wood v. Rey. and was entered at once in the judgment nolds, 7 W. & S. 406; Ridgway, Budd & docket, as authorized by the Act of March Co.'s Appeal, 3 H. 177; Bergner's Ap23, 1853, applying to Chester and other peal, 7 Nor. 120; Esther Hutchinson's counties, (Purdon 823, pl. 22,) and the Appeal, u Nor. 186; Peck's Appeal, 11 judgment so entered was then indexed in W. N. C. 31; King v. King & Miller, 2 the judgment index, as required by the Ches. Co. Rep. 45; Trickett on Liens, Act of Assembly. It appears that the vol. 1, Sec.

231. initial letter S. was written so small in the In the case before us, however, Fredsignature that it escaped the attention of erick A. Bickel, the holder of the second the prothonotary, and the judgment was judgment, is not in position to contest the entered against Joseph Nichols, and so right of Perkins & Miller, the holders of indexed. The entry stated the defendant the first judgment. In the entry of both as of Coatesville, where it appears all judgments the initial letter S. in the departies in interest reside. The next judg- fendant's name, is omitted, and in this rement is that of Frederick A. Bickel. This gard they are on the same footing. Their judgment was also entered on a bond and respectivejudgments were originally enterwarrant of attorney, and was entered in

1

ed against Joseph Nichols, not Joseph S. like manner in the judgment docket Nichols, and were revived against Joseph against Joseph Nichols, without naming S.Nichols. It is true that the prothonotary his residence and omitting the initial letter in indexing the judgment of Bickel, inS., but the judgment thus entered was in- dexed it against Joseph S. Nichols. This dexed against Joseph S. Nichols. Both in itself was an error of the prothonotary. these judgments were subsequently reviv- There was no such judgment to index. ed against Joseph S. Nichols, and so dock- He was indexing a judgment entered on eted and indexed. The auditor in his the docket against Joseph Nichols, and first report refers to the judgment held could properly, in the index, only refer to by Bickel as having been originally en- that judgment. The purpose of the index tered against Joseph S. Nichols, but he where a separate judgment docket is kept, corrects this in his report on the excep- as in this county, is to give information tions, and there states that it was entered of the entry of judgments in the docket, against Joseph Nichols.

and to guide persons making searches to The contention here is between these

the place where they are entered. The judgments, Mr. Bickel claiming that Per index of this judgment of Bickel would kins & Miller, whose judgment is prior in simply direct persons making searches to point of time, are not entitled to be paid a judgment against Joseph Nichols, not as against him, by reason of the defective one against Joseph S. Nichols.

Whatever might have been the rights entry of their judgment, and that the moneys, so far as needed, should, in pre

of Bickel as against Perkins & Miller, had ference, be awarded in payment of the his judgment been entered against Joseph judgment held by him.

S. Nichols, he certainly cannot here claim

that his judgment against Joseph Nichols It is undoubtedly the general rule that shall be paid in preference to Perkins & the omission of the middle letter in the Miller's entered in the same way. name of a defendant in the entry of There are no other interests involved judgment is fatal to the lien as against than those of the holders of these judgsubsequent judgment creditors, not hav. ments. We are of the opinion that they ing actual notice, and whose judgments should be paid in their order so far as the It is the duty of ceptions to the return of the sheriff are

, are properly entered. the judgment creditor to see that his judg. dismissed.

a

[ocr errors]

VOL. IV.

No. 29

[ocr errors]

YORK LEGAL RECORD. Mrs. Creamer, issued two sci. fa's there

on, one in the name of the State Bank for THURSDAY, SEPTEMBER 20, 1883.

the use of Mary Dietrich, No. 42 to Au

gust Term, 1882, and the other in the COMMON PLEAS.

Bank's name for the use of Catharine

Creamer, No. 43 to August Term, 1882. C. P. of

Dauphin County.

These writs are more fully described Winters' Estate.

hereafter. Upon these sci. fa's judgments A sci. fa. to revive the lien of a judgment must sub- were entered, on May 27, 1882, for want stantially identify the original judgment by parties, date and amount.

of an appearance, for $1227.18 and $323.The assignee of a part of a judgment sought to revive 26 respectively. No further action was the lien, to the extent of the equitable interest, by sci. fa., reciting the judgment in the name of the legal, to the use taken by any of the equitable plaintiffs unof the equitable plaintiff, and paming the amount assigned. Held, that the recital of the amount was a fatal var- til October 7, 1882, when Fleming & Mc-, iance, and that the judgment was not revived, in whole or in part.

Carroll, attorneys for Christian Ferrance Where the legal plaintiff is properly named, the addi- et al., filed a suggestion in No. 42, Aution of the name of the equitable plaintiff may be treated as surplusage.

gust Term, 1882, upon which a second Where the sci. fa. recite the original judgment against judgment was entered of $16,532.95, with the defendant as against the defendant and his assignee, "terre tenant in possession, defendants," the variance is interest from April 26, 1880, in favor of more important; and coupled with a variance in amount has weight as indicating that the sci. fa. and the original certain plaintiffs in specified sums. On were based upon different transactions.

May 11, 1883, another suggestion was Where the equitable owner of part of a judgment seeks to revive it, to the extent of the equitable interest, the filed by attorneys for all the other plainequitable owner of another part cannot, by a suggestion filed extend the lien to both.

tiffs, except one, marking portions of the. Nor can the defendant extend the lien, by appearing to judgment of October 7 to their use also. the sci. fa. and confessing judgment, after five years have clapsed and the land has been sold by an assignee. On October 7, 1882, the real estate, from

The equitable owner who issued the sci. fa, and subse- which the fund in question arises, was sold quent judgment creditors, have standing to object to such proceeding, and it is not going behind the record for an by order of court, and the sale was conauditor to enquire into it to determine the question of lien

firmed on November 20, 1882. On April Exceptions to report of auditors to dis- 26, 1883, Messrs. Wolf and Ott were aptribute.

pointed auditors to distribute the fund, The facts appear in the opinion of the and held their first meeting on May 12. Court.

On June 4, Geo. Winters filed a paper in

No. 42, August Term, 1882, appearing to July 18, 1883. MCPHERSON, A. L. J. the sci. fa. waiving exception to any va-The facts is this case are as follows : riance between that writ and the record

On May 4, 1877, the State Bank enter- | upon which it was issued, and also to ed a judgment against George Winters, previous entries of judgments thereon, and No. 145 to August Term, 1877, for a debt confessing a third judgment of revival for of $28,120.72. On October 11, 1878, a $16,632.95 with interest from April 26, credit was entered thereon sufficient to re- 1880, for the use of the several equitable , duce the amount to $20,000.00, and this owners of the original judgment accordwas assigned by the Bank in various sums ing to their respective interests as set out to a number of persons, among whom in the assignment of Oct. 12, 1878. were Mary Dietrich and Catharine The State Bank held a second judgCreamer, their interests respectively being ment against Winters for $10,264, entered $1300 and $340. In 1879, Winters made October 12, 1878, which was a lien on his an assignment for the benefit of creditors

real estate when the same was sold in to P. K. Boyd, and, in 1880, a partial dis

tribution was made, in which this judg-October-November, 1882, and claimed ment participated. On May 2, 1882, F.

the fund, which amounted to $7,141.38, K. Boas, attorney for Mrs. Dietrich and on the ground that the lien of No. 145,

[ocr errors]

August Term, 1877, had been lost by fail- State Bank, a subsequent judgment crediure to revive. Mrs. Dietrich and Mrs. tor, also object to the confession, as an atCreamer claimed to be paid in full, assert- tempted ratification of the judgment of

October 7, 1882, or considered as an indeing that they had revived that judgment pendent 'act? Under the circumstances, for the respective interests therein by sci.

we think it has a standing to be heard. fa's. 42 and 43, August Term, 1882, and It must be remembered that the defenthe other equitable plaintiffs claimed that dant's property was sold in 1882; the sale the entry of judgment on October 7, 1882,

was confirmed on November 20 of that for $16,532.95, and the confession of judg- could not be disturbed after that date, at

year, and we think the rights of creditors ment by Winters on June 4, 1883, revived latest. The defendant's title was then the original for the full balance due for transferred to the purchaser, his land was the benefit of all, and that the fund should then turned into money, and the liens go to all, pro rata, to the exclusion of the upon it were then divested and became

claims upon the fund. If the Bank's second judgment of the Bank. The

judgment was then the first lien, or prior auditors awarded the fund to the Bank,

to all others except Mrs. Dietrich's and holding that sci. fa's. 41 and 43, August Mrs. Creamer's, it certainly can be heard Term, 1882, and the subsequent proceed to object to a proceeding, the result of ings referred to, did not continue the lien which might be to take from it a fund, to

part or all of which they were entitled. of No. 145, August Term, 1876, either in

If the lien of the original judgment was whole or in part, and the correctness of

gone, in whole or in part, by reason of a this ruling is the matter for determina- failure to revive, it surely could not be tion.

restored, as against the Bank, by the de

fendant's declaration that he wished it to Several questions of some difficulty are

continue, especially if, as we think, the presented by these facts, and in reaching rights of the lien creditors were fixed at a conclusion we have been much assisted

latest by the confirmation of the sale. by the able report of the auditors and the Suppose no fi. fa. at all had issued ; in arguments at bar. We will consider these that case the lien of the original judgment, questions in what seems to us the most

would, of course, have ended, as against

the Bank, when the five years expired, convenient order.

(Bank v. Fitzsimmons, 3 Binn. 342; (1) What effect, if any, is to be given Styer's Appeal, 6 H. 86; Fulton's Estate, , to the confession of judgment entered i Sm. 204 ; Mellon's Appeal, 15 Nor. June 4, 1883? It is urged that it must be 478; and, as against it, no subsequent treated as curing any defect in the sci. action of the defendant could have refa., though the judgment for $16,532.95, stored it. A similar result must follow if entered October 7, 1882, of which this the sci. fa's which did issue were not efconfession is meant to be a ratification, fective to continue the lien ; if they did was entered against the protest of Mrs. continue it, the defendant's confession of Dietrich's counsel, who claim the right to judgment was unnecessary, for the mere revive for her separate interest alone, and issuing of a proper sci. fa. without service denies that the sci. fa's he issued have any or judgment thereon would be sufficient defects to be cured, and although the con- for that purpose (Lichty v. Hochstetter, fession was obtained by counsel represent- 10 Nor. 444; Kirby v. Cash, 12 Ib. 505;) ing other claimants than Mrs. Dietrich. if they did not continue it, he could not But we think this protest is entitled to take away from the Bank a legal advanconsideration. No other of the persons tage to which it had become entitled by to whom the original judgment was as- reason of the negligence of prior judg. signed seems to have joined in the pro- ment creditors. The confession is really ceedings begun by Mrs. Dietrich and Mrs.

an attempt, on behalf of certain parties in Creamer, and, if they had the right to interest, to amend defects which they adproceed separately, and have by diligence mit to exist in sci. fa. No. 42, August acquired priority, certainly the defendant Term, 1882, considered as a sci. fa. to recould not be allowed, upon his own mo- vive the whole judgment; for it was not tion merely, or upon that of other persons, needed to continue the lien of the original to deprive them of precedence. Can the if the sci. fa. had been good (see cases

[ocr errors]
[ocr errors]

above cited ;) and, for the reasons stated, is all that is required; but this qualificawe think the attempt must fail.

tion must exist to prevent valuable rights (2) This brings us to the second ques- from being sacrificed to technical and fortion, viz.: Did the sci. fa. issued by Mrs. mal objections. What now is the case Dietrich, and the subsequent proceedings here? As to the parties, in the original thereon, excluding the confession of judg- judgment was in favor of the State Bank inent, avail to continue the lien of the against George Winters; the sci. fa: deoriginal in favor of all the persons to scribes it as recovered by “the State whom it was assigned ? Here, again, it Bank for the use of Mary J. Dietrich,” is urged, that the Bank cannot object to against "George Winters, and Peter K. any irregularity of the proceedings, or the Boyd, assignee of George Winters, terre auditors go behind the judgment of re

tenant, in possession, defendants." As to vival of October 7. But the question is the date, the number and term correctly not of this character; it is a question of recited, and no variance in this respect is lien, whether the judgment on the sci. fa. alleged. As to the amount, the original is the original judgment so continued as

was for $28,120.72, and the sci. fa. deto preserve its priority, or whether the scribes it as recovered for $1300.00, in this latter has lost its place by lapse of time and the other particulars exactly followwithout revival. This can only be deter- ing the praecipe. These are certainly mined by inspection of the record, and variances, and if they are substantial we such an examination it is clearly proper

must hold that the lien does not continue. for a subsequent judgment creditor to re

It cannot be doubted that on the plea nul quire, and for an auditor to make. (Ed- tiel record, they would be fatal ; but we ward's Estate, 2 Pears. 58-9.) It is ne

hesitate to apply so strict a rule as there cessary, therefore, to consider th sci. fa. prevails in favor of a subsequent judgissued by Mrs. Dietrich, and determine ment creditor whose money was not adits effect.

vanced after the sci. fa. issued. He has

done nothing on the faith of the record ; A sci. fa. to revive must substantially and asserting a strict legal right without identify the original document as to par- equity, cannot complain if we insist that ties, date and amount. Its purpose is to his right shall clearly appear as a matter give notice that the lien of the original is of substance and not of form alone. to continue, and the original must, there- When it does not appear, however, he is fore, be clearly pointed out. It is not of course entitled to its benefits. enough to correctly name the parties, or the parties and the date, or the parties

The first variance complained of we reand the amount, alone, for, in either case, gard as of no consequence. The legal it might well be that another judgment in plaintiff is properly named in the sci. fa. another proceeding might be meant; but and the addition of Mrs. Dietrich's name, where parties, date and amount together we think, may be treated as a surplusage. appear with substantial correctness, it is the second variance is of more imporheld that sufficient marks of identity are tance, but we would hesitate to hold it present. The following cases show the fatal if it stood alone. Coupled with the necessity for correctly reciting the origi- third, the difference in the amount, it has nal judgment: Brannan v. Kelly, 8 S. & more weight, as indicating that the sci. fa. R. 481 ; Black v. Dobson, I. Ib. 94; and the original were based upon different Walker v. Pennel, 15 Ib. 68; Williard v. transactions; but we express no opinion Norris, 2 R. 62; Arrison v. Com., 1 Watts on its affect, because we cannot avoid the 380; Eichelberger v. Smyser, 8 Watts conclusion that the difference in amount 181 ; Grennell v. Sharp, 4 Wh. 344 ; must be regarded as substantial. We are Dougherty's Estate, 8 W. & S. 189; Rich- now considering whether this sci. fa. can ter v. Cummings, 10 Sm. 441. The ne- be held to revive the whole balance due on cessity for a definite legal rule on this sub- the original, and in that aspect of the case, ject is apparent. The question being one we are forced to say that the variance is of notice, if no rule existed, each case fatal. The original to be revived was for would stand by itself, and different courts $28,120.72; the sci. fa. describes its origiwould certainly hold different views as to nal as being for $1300.00. What connecwhat was sufficient. Even as it is, there tian can be discovered between the two ? is some room for uncertainty, since sub- Nor is this a mere clerical mistake, for stantial correctness in the three essentials when judgment is taken, it is for $1,22918, reached by credit and calculation upon not so framed as to support their right. a principal of $1300.00, and in no way

Another argument may be briefly notireferring to the larger sum. If sci. fa's to ticed. It was urged, that the mere issurevive must substantially recite the ing of a sci. fa., without more, continues a amount of their originals, this one fails to lien, and that, as a sci. fa. issued here, it is do so, and the lien of its original was not enough, although the judgments upon it contiued—at least, not as to the whole are admitted irregular.

This supposes amount.

that the issue of any sci. fa. is sufficient, If this variance is fatal, its effect could but it need hardly be said that the cases, not be avoided by the judgment entered which hold the issuing of the writ to be on October 7, 1882. This presents the enough, mean a proper writ. If it is subanomaly of a judgment for $16,532.95 on stantially defective it fails. a sci. fa. which recited an original of only (3) The final question is, whether Mrs. $1300.00, on which there was a credit of Dietrich and Mrs. Creamer had the right $341.06, and upon which there was already to issue separate sci. fa's for their respeca judgment of $1229.18. Moreover, this tive interests, and, if also, whether they isjudgment of October 7 was entered upon sued proper writs. The case of Peterson the suggestion of counsel for other claim- v. Lathrop, io Cas. 223, decides that an ants than Mrs. Dietrich, and against the equitable plaintiff may issue a sci. fa. upon protest of her own attorney. If she had a the original judgment claiming to recover right to a separate sci. fa. for her own in- only his interest therein, and that, in such terest, certainly other claimants could not case, the judgment of revival should only interfere with it after judgment; if she had be for the amount he claims. It does not no such right and her writ must be held decide that separate sci. fa's may issue for to be upon the whole judgment for the each interest, although the language of the benefit of all, we have already decided court indicates that the other equitable that the sci. fa. she did issue was bad and plaintiffs might afterwards take some acfailed to continue the lien of the whole. tion upon the original judgment. But the It certainly could not, in any event, sup- language is as much applicable to an exeport a judgment for over $16,000.00. În cution thereon for their interests as to a sci. addition to this the judgment of October fa. to revive, and the point was not raised 7; 1882, was unnecessary, if sci. fa. 42, | by the facts or necessary for the decision. Aug. T. 1882, was good, for, as we have Neither is it neccessary here, for the reason seen, the mere issuing of a proper writ that these two writs are quite as objeccontinues the lien.

tionable, when considered as an attempt, We say nothing as to our power to have to revive separate interests, as we have amended there proceedings, if applied to

found one of them to be considered as an in time. Such an application was made attempt to revive the whole. They are on the argument of these exceptions, by just as varient in one respect as in the the counsel who directed the judgment of other. They do not, as in Peterson v. October 7, 1882, but we think it is too Lathrop, correctly recite the original, the late. The lien, considered as a whole, is interest of the equitable plaintiff therein, gone, the land is sold and the fund in court.

and claim to recover this interest and How can we now amend substantial variances, when the effect would be to alter share, so that the identity of the original valid existing rights to the money ? clearly appeared, although the claim of Neither is any amendment asked by Mrs. the equitable plaintiff was limited to his Dietrich ; and, we repeat, if she had a own interest therein ; but are in the comright to separate a sci. fa., we could not, upon the motion of others, amend away

mon form, based on alleged originals of her priority. The probable explanation $1300 and $340 respectively, and, for the of this singular record is, that all the equi- reasons already given in considering Mrs. table plaintiffs except Mrs. Dietrich and Dietrich's writ under another aspect, can Mrs. Creamer were negligent and allowed not continue the lien, even in part. Both the five years to elapse without action, and that, afterwards becoming aware of

writs were alike and neither is good. The their situation, they endeavored to avail exceptions are dismissed, the report is themselves of a writ which was not in-confirmed, and distribution decreed in actended for their benefit, and, hence, was cordance therewith.

« ПредишнаНапред »