Flicker's Appeal

1 Watts 393 | Pa. | 1833

The opinion of the Court was delivered by

Huston, J.

When John Miller was elected sheriff of Berks county he was the owner of certain lands, all of which were bound by the recognizance then entered into by him by the provisions of the act of the 28th of March 1803. It has been decided that a judgment does not in this state bind after-purchased lands, unless levied on while in debtor’s hands; but that if he sells them to an innocent purchaser before levy, such purchaser holds them clear of the lien. Whether the principle of that decision would embrace this case is not material, because Heister sued a scire facias on that recognizance and presented it to judgment, which judgment bound all lands which were the property of Miller at the date of that judgment, although not bound by the recognizance as having been purchased after its date. Heister is then entitled to the whole of his judgment up to the time of the return of the sheriff’s sale, that is to 1191 dollars and 8 cents; for all the lands sold were Miller’s before the judgment on the scire facias.

The Bank of Pennsylvania had the next judgment, viz. of the 11th of November 1822, and fieri facias issued to 7th January 1823. On the return day of this fieri facias, a motion was made to open their judgment and let the defendant into a defence; a rule to show cause was entered, and made absolute on the 26th of March 1823 ; the judgment and execution to remain as securities. It would seem nothing has been done in this trial thus ordered; but under the act of 1827, and its supplement of the 26th of March 1829, a scire facias was duly issued to show cause why the lien should not be continued five years. The question is, whether the lien was not lost before that scire facias issued in 18301 because more than five years had elapsed from the date of the judgment, on the 11th of November 1822 ; and because the fieri facias on the rule to open the judgment had been returned not executed. By the law, a rule to stay proceedings for one purpose, stays the proceedings for all purposes; and this would, independently of any settled rule, be the case where they are stayed for the purpose of ascertaining the amount really due. The act of the 26th of March 1827, has, however, established one exception to this: in section third, it is enacted, that “ no order- or rule of court, or any other process or proceeding thereon, shall have the effect of obviating the necessity of a revival in the manner herein prescribed.” This seems to recognize, that theretofore an order or rule of court might have had that effect. That law was made to confine the continuance of liens thereafter to the strict letter of the act of assembly. The second section also recognizes that judgment had before that time been kept in force by a liberal construction in favour of their liens. We are of opinion, then, that, although since.the act of 1827 the lien would not be preserved by a rule tying up the proceedings in a judgment issued, yet before that it would have been, and that the judgment of the common pleas was right.

It has been objected that this motion and rule to stay proceedings, were entered under entry of this execution in the execution docket, and not as the entry of the original action in the appearance docket. Where no execution has issued, such motion and rule would be entered to the suit in the continuance docket. Where an execution has issued, and one object of the motion is to stay (he proceedings on the execution, the motion and rule are often entered in the execution docket; perhaps, in some counties, it is generally so entered. It is true, when the issue is formed, and a trial had, the whole would be transferred-to the appearance and continuance docket. It was said, the execution docket was no part of the record; but this, I think, was said without reflection: the discharge of the debt by levy and sale appears on. that docket; and if the money is paid after execution, and without a sale, that appears generally, if not always, on the execution docket. On that docket, the plaintiff, or his attorney writes the satisfaction : and we find it said, that the writ, new pleas and executions are the record; and we find it said, that the,docket is the record; both assertions are partially true—they are both together the whole record. The pleas are not found except on the docket, in most cases ; the judgment is found only on the docket; and I have said, satisfaction is generally only found there. The rules to take depositions, and every other rule in the progress of the cause, are found on some of the dockets. It is true, the execution itself, where the party claims or defends,under some act of the officer under it, must be produced if possible ; if lost, we produce the docket instead of it.

This is not like the case of Black v. Dobson, or any case of a judgment bond entered up by the plaintiff who is bound, by positive enactment, to make his entries effecting that judgment, in a proper place. It is the act of the court, in tying up this judgment, and we should make sad work if all the entries in the execution docket were declared apocryphal. All proceedings after judgment are to be found, in ninety-nine cases out of a hundred, in that docket.

It would seem the issue directed between the Bank and Miller, is not yet tried. The money can not be kept locked up for ever. If the parties do not proceed to trial, the court ought to permit Fricker, who is next entitled to the money, to appear as defendant, and rule plaintiff to a trial.

Judgment for Heister, for 1191 dollars and 8 cents ; and affirmed for the rest.