Early v. Zeiders

Opinion, Mr. Justice Williams: The fund for distribution in this case was raised by the sale by the sheriff of the real estate of Josiah Zeiders. It is claimed by each of two judgment creditors, upon the ground that his judgment is the first lien on the land sold. The appellant’s judgment was entered in March, 1874, and has been regularly revived at proper intervals to continue the lien, the last of the series of revivals having been entered in February, 1889, while the sheriff’s sale took place in September, 1889. The other claimant is Jacob Early, whose judgment was entered in July, 1878, and revived in November, 1885. The auditor held that the appellant’s judgment was entitled to the fund, because it was the older lien, and had been kept in force by the several revivals, só that its priority was preserved. The learned judge of the court below reversed the auditor, holding that the last revival of the appellant’s judgment, in February, 1889, was irregular, and that, in consequence of such irregularity, the lien was not continued, but must be treated as beginning on the date of the revival. For this reason, he awarded the fund to the Early judgment. The only inquiry to be made in this case, therefore, is into the regularity of the revival of the appellant’s judgment in February, 1889. The judgment of revival was entered by the prothonotary by virtue of the authority contained in an amicable scire facias, signed by both plaintiff and defendant. This paper correctly recited the judgment to be revived as No. 143 of April Term 1884, in the Common Pleas of Dauphin county. It gave the names of the legal and use plaintiffs, and the name of the defendant, just as the record showed them to be. It stated the debt exactly as it appeared at No. 143 of April Term, 1884, made a calculation of the accrued interest, and, by putting interest and debt together, made the new principle for which judgment was to be entered. It then authorized the prothonotary to enter the new judgment, with the same effect as if a writ of scire facias had been issued and returned with personal service on the defendant. This was a regular and formal amicable scire facias, which authorized the judgment of revival [463] entered by the prothonotary. At the foot of the paper was added a clause containing a “ waiver of the right of inquisition and exemption laws now passed, or hereafter to be passed, together with an attorney’s commission of five per cent for the collection thereof;” and this is the irregularity or departure which influenced the action of the court below. It is not alleged that the amicable scire facias omits any necessary stipulation, or departs from the record in any of its recitals affecting the judgment to be revived, but that it contains additional stipulations in relation to the collection of the debt. The learned judge said, in his opinion overruling the auditor: “The original judgment, and the revivals of 1879 and 1884, contain no waiver of the exemption laws, and no provision for an attorney’s collection fee, while the revival of 1889 contains both these provisions. These substantial additions to the original judgment are a material variance, and therefore break' the continuity of its lien in favor of other liens existing at that date.” In support of this conclusion, he cites Dietrich’s App., 107 Pa. 174. But the rule laid down in that case is not applicable on the facts of this case. It was there held that, “ in order to continue the lien of a judgment, the scire facias to revive must correctly recite the original judgment, and substantially identify it as to parties, date, and amount.” In all these particulars, the amicable scire facias in this case is unexceptionable. It identifies the judgment, the lien of which it proposes to continue, by a recital of the parties, the date, and the amount which is absolutely correct; and it omits no particular that could aid in the work of identification. If the words thought to make a variance were omitted, it would not be doubted that all the requisites of a good amicable scire facias would be present. Since this is so, it is important to inquire into the legal effect of the additional'words. They do not disturb the identification of the judgment to be revived, nor do they profess to refer or relate to it, but to add to the security afforded by the judgment by a waiver of the right to inquisition and exemption upon it, if process should be required for its collection, and an undertaking to pay a commission to the plaintiff’s attorney of five per cent for services in collecting it. This is an additional stipulation intended to increase the value of the security afforded by the judgment as revived, and, as between the parties [464] to it, is clearly a valid and binding one. If, at tbe time of tbe revival, tbe defendant bad become indebted to the plaintiff in an additional sum, we see no reason why, as between the parties, the additional debt might not be added to the amount of the judgment to be revived, and one judgment entered covering the entire indebtedness. As to existing lien creditors, the judgment would be a new one for the amount of the new debt; but the lien of the former judgment would not be lost by the consolidation as to the amount actually due upon it. Whether, under such circumstances, the old judgment shall be revived for the old debt, and a new judgment entered for the new one, or both sums be united in one, by putting into the amicable scire facias a stipulation that the new debt be added to the old, and one judgment entered for the entire amount due, is a question to be decided by consideration of convenience to the plaintiff, and economy to the defendant. So long as the rights of other persons are not involved, it is competent for the parties to do as it may seem best to them; but it is equally clear that it is not in their power to prejudice or impair the rights of existing judgment creditors by the agreements they make with each other. The holder of a prior lien cannot add to its amount, or change its situation, to the prejudice of any creditor who has a valid lieq at the time when such addition or change is attempted; but, if he has an additional demand against the defendant, whether he takes a new judgment therefor or adds it to a prior judgment upon revival by amicable scire facias, it is a new lien for the new debt, in either case, as to all existing lien creditors. He cannot tack his new debt upon the lien of his old judgment; nor will the law tack his old judgment to the new debt, and so deprive him of the benefit of its lien, but will look into the lien of the new judgment with reference to the rights both of the parties to it, and the other lien creditors of the defendant. The stipulation to pay a commission of five per cent cannot be enforced to the prejudice of liens existing when it was entered into; but, subject to this consideration, it is enforceable against the defendant and creditors whose liens were subsequent to the entry of this stipulation on the record. The same thing may be said as to the waiver of the right of exemption. If it should appear that this waiver operated to the injury of any existing lien creditor, he [465] should, be heard upon that subject; but, as between the parties, as we have already said, it is binding, as it would also be on subsequent judgment creditors. These stipulations had, therefore, no effect upon the appellant’s judgment that could deprive him of his lien for the debt, interest, and costs due upon it; and the learned judge of the court below was in error in holding that they amounted to a variance or departure from the original judgment, and deprived it of its lien. The decree of the court below is reversed; the report of the auditor is confirmed, and distribution ordered in accordance therewith.