Duffey v. Houtz

Chief Justice Mercur delivered the opinion of the court, October 6th, 1884. This contention arises on the claim of the plaintiff to demand an amendment of the record to the prejudice of the vested right of one not a party to the record. The plaintiff held two judgments against Houtz — one entered February 8th, 1878, in No. 1154, December Term, 1877; the other entered on the 20th April, 1878, in No. 816, March Term, 1878. J. B. Coryall, the now defendant in interest,recovered a judgment against Houtz on the 22d March, 1878. [100] In January, 1883, a praecipe was filed in No. 816, March Term, 1878, and a scire'facias issued to revive the judgment. The writ was-returned by the sheriff nihil habet, and on the 15th February an alias scire facias was issued and returned in like manner. Thirteen days after the lien of judgment in No. 1154, December Term, 1877, had expired, the plaintiff obtained a rule to amend the record. Claiming a mistake had been made in describing judgment No. 816, March Term, 1878, and in proceeding to revive the same, instead of No. 1154, December Term, 1877, he prayed that the preecipe and writ might be so amended as to describe and apply to the latter. The defendant appeared on the return of the rule, and not objecting, it was made absolute. A few days thereafter on application of J. B. C'oryallj-the order was so amended as not to prejudice his rights-or the rights of other creditors or purchasers. This modification is the plaintiff’s cause of complaint. The power of the court to amend the record as between the parties to the judgment, does not necessarily arise now. We however are unable to discover anything in the record to amend by. The praecipe referred to and described No. 816 only. The parties, number and term, were correctly given. The writ of scire facias followed the praecipe and recited that judgment. No reference whatever was made to No. 1154, and no entry was made on the record thereof. No clerical error was made by any person having charge of the record. The prothonotary correctly followed the instructions of the praecipe. The alleged amendment did not correct any irregularity or defect in the record. There, was no inconsistency therein. Each part of the record was in entire harmony with every other part thereof. In fact there was not any mistake in the record. The mistake, if any, was wholly outside of the record. It consisted in the entire omission to take any step towards the revival of the judgment in No. 1154, December Term, 1877. The whole action to revive was taken in another judgment in another term. The instructions of counsel w'ere duly followed by the officer. In view however of the restricted effect given to the amendment by.the court, no injustice was done to other judgment creditors, and the defendant in the judgment is not complaining. While a liberal exercise of the right of amendment has been recognized in many cases, among which are Black v. Dobson, 11 S. & R., 94; Maus v. Maus, 5 Watts, 315 ; Rainey v. Commonwealth, 10 Id., 343 ; Crutcher v. Same, 6 Whar., 340; Sweeny v. Delany, 1 Barr., 320; Trego v. Lewis, 8 P. F. Smith, 463; yet amendments are not to be allowed which introduce a new cause of action, or which deprive the opposite party of any valuable right, or injuriously [101] affect third persons. Black v. Dobson, supra; Crutcher v. Com’th, supra; Kille v. Ege, 1 Norris, 102; Leeds v. Lockwood, 3 Id., 70. In Black v. Dobson the amendment was allowed because it was in matter of form and would not prejudice other judgment creditors. In Crutcher v. Com’th it was held that an amendment should not be allowed to affect the rights of a subsequent judgment creditor, or mortgagee, or a purchaser; nor could it be done against the bail to the action, who are neither parties nor privies to the original suit. It is claimed by counsel for plaintiff that protection against the injurious effect of an amended judgment applies only in favor of a judgment obtained after the expiration of the lien of the prior judgment, and before it was amended. No authority is cited which so holds ; nor do we think this view sustained by sound reason. It is true a judgment obtained after the loss of the prior lien, might, on the ground of equitable estoppel, be protected against the injurious effect of an amendment of the prior lien afterwards made; but we think the protection is not thus limited. Section 2 of the Act of 4th April, 1798, provided that no judgment thereafter entered should continue alien outlie real estate of the person against whom it was entered, during a longer term than five years from the first return day of the term to which it was entered, unless the plaintiff within said five years should sue out a writ of seire facias thereon. Section 1 of the Act of 26th March, 1827, Purd. Dig., 820, pi. 5, declares inter alia that all judgments entered or revived in any court of record of this Commonwealth, shall continue a lien on the real estate of the defendant for the term of five years from the day of entry or revival thereof; and “no judgment shall continue a lien on such real estate for a longer period than five years from the day on which such judgment may be entered or revived, unless revived within that period by agreement of the parties and terre-tenants, filed in writing and entered on the proper docket, or a writ of scire facias to revive'the same, be sued out within said period.” In order to guard against the liberal construction given to the Act of 1798 for the continuance of liens, the Act of 1827 declared “ no order or rule of court or any other process or proceeding thereof, shall have the effect of obviating the necessity of the revival, in manner herein prescribed, of any judgment whatever.” Hence, since the passage of the latter Act, a judgment opened to let defendant into a defence, and, after the expiration of five years, on writ of error entered in favor of the plaintiff, is nevertheless postponed in favor of a subsequent judgment creditor. Tlie pendency of the proceedings does [102] not operate to revive the judgment or continue its lien during the intervening time; Styers’ Appeal, 9 Harris, 86 ; nor when it is opened for defence, can an order of court that “the judgment remain as security” extend the lien. Fricker’s Appeal, 1 Watts, 393. Nor will a scire facias which recites the original judgment improperly in a substantial matter, continue the lien, although after the five years have elapsed the court permitted the scire facias to be so amended as to recite it correctly. Arrison v. Commonwealth, 1 Watts, 374. While for some purposes between the parties, to the judgment, the lien thereof may continue beyond the five years, yet it cannot against, purchasers from the defendant nor against his judgment creditors. Fetterman v. Murphy, 4 Watts, 424; Aurand’s Appeal, 10 Casey, 151. Whether the lien of a judgment be kept alive, and remain in force, must be determined by an inspection of the record. If the record does not show its existence, it is lost and gone. Arrison v. Com’th, supra. From the 8th until the 21st of February there was no entry of record either in No. 1154, nor in any' other suit or proceeding, indicating any design to revive that judgment. The record showed the iien thereof had expired. Neither praecipe filed, nor scire facias issued, in any manner referred thereto. No step was taken, no notice was furnished, of the intention now said to have then existed in the mind of the plaintiff or his attorney. On the expiration of five years from the entry of the judgment in question in favor of the plaintiff, the judgment of Coryall became the first lien on the land of the defendant. His right to such priority became vested in him. No active effort on his part at that time was necessary to create it. Lapse of time, and the omission of' the plaintiff to revive his judgment, made the lien of Coryall first. He had' acquired a valuable right. He may then invoke the protection of the Act of Assembly', which declares “the lien of a judgment shall not continue for a longer period than five years ” unless revived or scire facias issued. His vested and valuable right of priority cannot be destroyed by the subsequent amendment of the record in a case between other parties. Even as between the parties to a suit an amendment will not be allowed to affect the rights which the defendant may otherwise have \mder the statute of limitations to the land in controversy'. Kille v. Ege, supra; Leeds v. Lockwood, supra. We therefore hold .that lien creditors or purchasers, who may successfully resist the amendment of a record to restore a former lien, which would impair their vested rights, are not those creditors or vendees only who acquired a lien or made a [103] purchase after the expiration of the former lien. This right extends to those who obtain a lien or make a purchase during the life of the prior lien, and whose rights will be impaired by the proposed restoration. Such a creditor holds a subsequent judgment within the meaning and spirit of the decisions protecting his rights against lost liens. The learned judge committed no error in the qualification attached to the order of amendment. Judgment affirmed.