Hopkins v. Stockdale

Opinion, Me. Justice Williams: The court below properly refused to enter judgment for want of a sufficient affidavit of defence in this case. The plaintiff held by an assignment from Smith & Son the sum of $374.19 of the amount of a judgment which Smith & Son had obtained against Stoekdale for $751. The balance of the judgment was soon after assigned to another, so that no part of it remained the property of Smith & Son. The judgment was not payable by instalments, but was entered for an entire sum then due and payable from Stoekdale to Smith & Son. In December of the same year Hopkins sued out a writ of scire facias against the defendant, in which after reciting the original judgment the defendant was called upon to show cause why a judgment should not be rendered against Mm and in favor of Hopkins “to the extent of his interest for his debt and damages.” In other words, the assignee of part of an entire sum secured by the judgment sought to obtain by means of the 'writ of scire facias a separate judgment for his part of the money due from the defendant, and an independent right to process for its collection. The court below held the proceeding regular, but put the refusal to enter judgment upon that part of the affidavit which alleged payment. For this holding the learned judge cited Peterson v. Lothrop, 34 Pa. 223. In that case the judgments had been entered upon bonds which recited and were given to secure inter alia certain claims held by Brunot. When the scire facias issued, wliich served as a model for the writ issued in this case, there appears to have been notMng due upon the judgments except the claims of Brunot which were recited in the bond; and within a few days thereafter the plaintiff in the judgments satisfied both of them “so far as they covered or secured any claim of his against the defendant and no further.” The scire facias was issued in the name of the legal plaintiff for the use of Brunot. The defence was that Brunot was not a party to the record, and had no right to process of any sort [376] upon the judgment; that the bond was given to Lothrop, the judgment entered in his name upon it, and that he had entered satisfaction upon the record. The question thus raised was whether the judgment could be revived for the balance actually unpaid, at the instance of Brunot to whom it was due under the provisions of the bond on which the judgment was originally entered. The opinion of this court was delivered by Justice Strong who said: “The court will look beyond the mere legal party, beyond the trustee to the cestui que trust; a fortiori will .this be done when the legal plaintiff is a naked trustee, or when a judgment has been given as in this case to secure the payment of debts due to others than the legal judgment creditor.” It will be seen that the question now raised was not involved in the case of Peterson v. Lothrop. In Dietrich’s Appeal, 107 Pa. 174, the question was raised and decided. The writ in that case was sought to be made use of 'to subdivide one judgment into several, so that each part owner might have his separate judgment against the defendant. This effort failed, and in the opinion of the court delivered by Justice Paxson, the case of Peterson v. Lothrop was spoken of thus: “ That case does not decide nor do- we decide now that when a judgment has been assigned to sixteen different persons each owner of a part of the judgment may have his separate scire facias to revive.” The rule undoubtedly is, that if one confesses a judgment for a sum of money, payable by instalments, a writ of fieri facias may issue upon each instalment as it becomes due, if necessary. The writ may issue to the use of the real owner of the instalment at the time it falls due. Such use of process imposes no hardship on the defendant not fairly within the contemplation of the parties, when the judgment was confessed, and the costs of collection are the same whether the writ issues at the instance of the original creditor or one to-whom he has assigned the particular instalment. But if the judgment is for an entire sum payable at one time, part owners, cannot issue separate writs of fieri facias for the collection of their separate interests. The judgment cannot be subdivided by the part owners either for the purposes of collection or revival. The scire facias issues upon the judgment and, as was distinctly ruled in Dietrich’s Appeal, must follow the [377] judgment. After service or its equivalent the court may-render judgment in favor of the plaintiff and against the defendant, that the lien be revived and continued and that the plaintiff have execution for the amount thereof. Such a judgment revives the hen for the benefit of all persons interested, although taken in the name of the legal plaintiff. Any person interested in the judgment may use the name of the legal plaintiff for this purpose, and his consent is not necessary. The effort of the use plaintiff in this case to split the judgment on the line of his own interest in the entire sum for which it was rendered, and get a separate judgment therefor, was properly set up as a defence and justified the ruling of the court below. The remaining part of the affidavit alleged payment of the judgment. It appears, however, that the payment consisted in the possession by the defendant of claims against the plaintiff. One of these was for advertising in a newspaper; the other was for the non-delivery of an engine and boiler in accordance with an agreement between the parties. The affidavit does not allege that these items have been settled and the .amount due upon them ascertained, nor that any agreement exists for their application on this judgment. Such an account is not a payment on the judgment unless it has been made such by the agreement of the parties. It is not a set-off, for its amount has not been liquidated and it is not of the same nature or grade of security as the judgment. It certainly is not an original equity. We cannot understand, therefore, upon what principle this account can be regarded as a defence to a scire facias sur judgment. We think the true reason for refusing the judgment in this case was found in that part of the defendant’s affidavit which denied the right of the plaintiff to make use of the scire facias for the purpose of dividing an entire judgment, and carving out of it a separate judgment for the sum due him under the assignment from Smith & Son. Judgment affirmed.