107 Pa. 174 | Pa. | 1884
delivered the opinion of the court, Octo'ber 6th, 1884.
The single assignment of error in this case is so wide a departure from the rules of court that we would be justified in dismissing the above appeals on that ground alone. Waiving the irregularity, however, we will dispose of the question presented as though error had been properly assigned.
If the judgment of the State Bank v. George Winters, No. 145, August Term, 1877, has been properly revived, either in whole or in part, the decree below must be reversed.
The judgment was entered May 4th, 1877, for the sum of $28,120.72. On October 12th, 1878, a credit was entered on said judgment of $10,264, and the balance, to wit, $20,000, was assigned to sixteen persons, including the appellants, the interest or proportion of each being set forth in the assignment. The interest of the appellant, Mary J. Dietrich, was $1,300, and that of appellant, Catharine Creamer, $340.
The record being in this condition an attempt was made by
The authorities are clear that in order to continue the lien the original judgment must be correctly recited in the scire facias. It must substantially identify the original judgment as to parties, date and amount: Arrison v. The CommonWealth, 1 Watts 374; Richter v. Cummings, 10 P. F. S. 441. The variance between the original judgment and the writs of scire facias in this case is so marked that it would be fatal upon a plea of nul tiel record. The only part of the judgment that was correctly recited was the term and number.
The appellants rely upon Arrison v. The Commonwealth supra, and Peterson v. Lothrop, 10 Casey 223, to sustain them. We do not so understand those cases. Arrison v. The Commonwealth decided that where a bond was given by executors to the Commonwealth, in pursuance of an order of the Orphans’ Court, conditioned for the faithful performance of their duties, and a judgment was obtained for the penalty of the bond by a legatee, any other legatee might sue out a separate scire facias on the judgment to recover his legacy. Peterson v. Lothrop decides that an equitable plaintiff may issue a scire facias upon the original judgment, claiming to recover his interest therein, and that in such case the judgment of revival should only be for the amount of his claim. But in that case the scire facias recited the original correctly, and the interest of the plaintiff was properly set forth. Such was not the case here. The interest of the appellants was not set out either in the preecipe or scire facias, and the judgment recited had no existence. Had the appellants followed Peterson v. Lothrop they would have been much nearer right. But that case does not decide, nor do we decide now, that where 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. That might perhaps depend upon circumstances, especially upon the consent of the defendant, and the facts in
It was said, however, that the matters complained of are at most mere irregularities, which no one but the defendant can object to, and that, under the authority of Dougherty’s Estate, 9 W. &. S. 189, the revival is good as against a stranger to the judgment. This would be so if the irregularities were mere matters of form. But they are not; they are matters of substance. The judgments against the defendant upon the writs of scire facias are good against him, but the lien thereon dates only from the time of their entry; the continuity is broken, and the lien of the original judgment is lost. It needs no argument to show that as against subsequent judgment creditors a judgment must be revived in substantial conformity to the Act of Assembly. If not so revived it is not revived at all; it drops out of the list of liens, and the next judgment takes its place: Hauer’s Appeal, 5 W. & S. 473; Dickerson and Haven’s Appeal, 7 Barr 255, and Thompson’s Appeal, 7 P. F. S. 175, are not in conflict with this view. The doctrine that a judgment cannot be attacked collaterally is not disputed. This is a question of lien, and I know of no case which holds that upon distribution a subsequent judgment creditor may not show that a prior judgment has lost its lien by a failure to revive in substantial conformity to the Act of Assembly.
The position that the appellees are estopped from claiming the proceeds of the sale upon their judgment cannot be sustained. The most that can be said is that under their arrangement with appellants they permitted the former to have the first lien. There was no agreement that they were not to profit by the neglect of appellants to revive their judgment. The parties stood upon the record as any other judgment creditors; the appellants could preserve their priority of lien by due diligence; they could lose it by their neglect.
We need not discuss the question how far the proceedings are amendable. The appellants did not ask to amend below nor here. On the contrary, they allege that the scire facias was regular, and the judgment was properly' revived. They claim to be paid in full, not only as against the appellees, but as against the other parties interested in the judgment. The object of their proceeding is palpable. They sought to revive a part only of the judgment; to the extent of their interest therein, which, if successful, would entitle them to be paid in full, instead of receiving a dividend with the others. It was perhaps ingenious, but like many other schemes to gain an undue advantage, has not been successful.
The decree is affirmed, and the appeal dismissed at the costs of the appellants.
