Smith v. Coray

Opinion by Mr. Chief Justice Green, While it is true that the present proceeding is a writ of scire facias to revive a judgment, it is also true that the facts set out in the affidavits of defense are of such a character as to impugn in a most serious manner not only the present integrity of the original judgment, but also the right of either the legal plaintiffs or their assigns, to recover any sum whatever from the defendant. The judgment was confessed for a very large amount in favor of a firm composed of three persons and named, William Alexander Smith &. Company, and it was assigned to David Perkins and John S. Jenkins at some time not specifically stated, but which apparently was prior to May 4, 1892. It is asserted in the appellant’s argument that the original judgment was entered to September term, 1877, and was kept alive by successive revivals every five years until in 1892, it was revived again, but as these facts do not appear in the affidavits of defense where they ought to be stated, we can take no notice of them. But the supplemental affidavit of defense does set forth a written acknowledgment under seal, executed by David Perkins, that he had received from the defendant full satisfac [606] tion of his interest in the judgment which was one half of the whole. And. he further authorizes the prothonotary of Luzerne county to enter upon the record full satisfaction of his entire interest in the judgment. This paper is dated May 4, 1892, and the affidavit of defense does distinctly allege that the assignment of the interest of Perkins in the judgment to Jenkins was not made until in June, 1896, about three years after the death of Perkins, and was obtained in some way not explained, by Jenkins from the widow of Perkins, without the payment of a single dollar of consideration. It is very certain that if these facts are true and unexplained on the trial, they would constitute a complete defense to any recovery by Jenkins for one half of the whole amount of the judgment. Both the affidavit, and the supplemental affidavit of defense positively assert that the defendant made a settlement of the whole amount of the judgment with William Alexander Smith & Company prior to any assignment of that firm to Perkins & Jenkins, but as this averment is not made with any details of the character of the settlement showing what it was, or how, or when, it was made, it would be entitled to very little consideration if it were not for the further fact that, in other parts of both affidavits, it was specifically alleged that the defendant himself caused the assignment from Smith & Company to be made to Perkins & Jenkins, in his own interest, and for his own purposes, and that Jenkins was, and for many years had been, his, Coray’s confidential friend and trustee, and acting as his agent and in his employment in the conduct of his Coray’s, private business. And the supplemental affidavit further avers that he, Coray, made the settlemental 'with Smith & Company for their judgment with his own property exclusively, and that neither Perkins nor Jenkins furnished any means or property of theirs in making said settlement, and further that the said judgment was assigned to Perkins who was Coray’s brother-in-law, and Jenkins who was his confidential agent and trustee, simply because it was a prior lien to another judgment which they held against him, and because he, Coray, deemed it desirable in his own interest, that the Smith judgment should be so held instead of being satisfied of record. The supplemental affidavit further avers that the assignment was made to Perkins and Jenkins upon the distinct understanding that the judgment [607] should be satisfied of record by them whenever he, Coray desired it to be done. Of course if these facts are true and unexplained, there could be no recovery on this judgment in favor of either Perkins or Jenkins. In addition to the foregoing the supplemental affidavit avers positively that the defendant had placed in the hands of Jenkins and his agent and trustee, large amounts of stock in two companies which he names, with the amounts of each, which Jenkins was to hold for him, but that he, Jenkins, in violation of his trust converted to his own use and refused to deliver to the defendant upon his demand for the same, and that the value of the stocks and property thus converted was 1100,000 in one instance, naming it, and 127,000 in the other. The affidavit futher avers that the properties of those two companies are situated in Lackawanna county and that he, the defendant had, previously to the issue of this scire facias, filed in that county a bill in equity against Jenkins charging him with violation of his said trust, and demanding an accounting as trustee, and the restoration of his securities, and that that bill is now pending in that county, and that upon an adjustment of the accounts between them the said Jenkins was largely indebted to him. As an absolute judgment against the. defendant in this case, and in a similar proceeding by Jenkins on another judgment against Coray now pending in this county, No. 244, January term, 1899, would practically exclude the defendant from the benefit of that litigation, and might disable him from proceeding with it altogether, an additional reason is afforded for allowing a full hearing on the merits in the cases now before us. We are clearly of opinion that the affidavits of defense are sufficient to carry the case to a jury and we therefore sustain the assignments of error. Judgment reversed and procedendo awarded.