Seymour v. Hubert

Mr. Justice Mercur delivered the opinion of the court, May 3d 1880. It may be conceded as a general rule, that in case of a scire facias to revive a judgment, no defence can be made except matters arising subsequent to the judgment. The merits of the original judgment cannot be inquired into so as to admit a defence which might have been set up in the original suit: Cardesa v. Humes, 5 S. & R. 65; Davidson v. Thornton, 7 Barr 128 ; Pitts., Cin. & St. Louis Railway Co. v. Marshall, 4 Norris 187. If the objection be to the validity of the former judgment, the proper mode is to apply to have it opened. The original judgment in this case was entered on a judgment note. It is claimed that when the note was executed, both the makers thereof were married women, and the judgment therefore void. Instead of an application to open the original judgment, the coverture of each of the makers of the note was severally pleaded and denied in the replication. The defendant in error did not demur to the sufficiency of this plea nor move to strike it off, but accepted the issue tendered. The question of coverture' was thus made one of the issues to be tried. It was substantially the same as if it had been framed in the original judgment. The defendant in error thereby waived her right to exclude the evidence of coverture. Under the pleadings it was admissible, and if found to exist at the execution of the note, that issue should have been found in favor of the plaintiffs in error. The first and second assignments are sustained. The language covered by the third assignment, although correct as a general proposition, was not applicable to the issue being tried. The fourth assignment is not sustained. The name of the husband might well have been added to the record, but he had no right of action in himself alone. Judgment reversed, and a venire facias de novo awarded.