Grenell v. Sharp

4 Whart. 344 | Pa. | 1839

The opinion of the Court was delivered by.

Sergeant, J. —

In this case the scire facias recited the judgment correctly, as having been rendered against Sharp, Day and Stanton, but it called on two of the defendants to answer, and to show cause why execution should, not be had against Sharp alone. The scire facias and proceeding thereon, were erroneous; for an execution must always pursue the judgment, and if the judgment be against three jointly, the execution must be also against them jointly. Penoyer v. Bruce, (1 Lord Ray. 244.) Salk. 319, S. C. 2 Barnes, 172, 210. 3 Keb. 298. 2 Bac. Ab. 725. In the same manner, a scire facias is a judicial writ, and must pursue the nature of the judgment; therefore if the judgment is joint, so ought th& scire facias to be. Panton v. Hall, (2 Salk. 598.) After issuing the scire facias properly, and obtaining a joint execution, the right of the defendant to use that execution, to enforce his equity as surety, by levying on the property or person of another of the defendants in the execution, is a different question; but certainly he cannot proceed by a scire facias against two out of the three joint defendants, and obtain an award of execution against one of them.

As to amending the scire facias, that, it appears to us, could not be done. The act of 1806 does not authorise the introduction of new parties to a suit, either plaintiffs or defendants; Wilson v. Wallace, (8 Serg. & Rawle, 53;) and here it would in effect permit the plaintiff to add a new party to the scire facias, and one not directed to be served, nor actually served with process. In' the same case it was held, that the provision in the seventh section of the act of 24th March, 1818, .that no suit shall abate, &c., by the omission to name one of the parties, but in such case the names of the persons so omitted may, on application to the court, be added to the record, &c., does not extend to suits of all descriptions, but was intended to provide merely for the omission of the names of persons suing in a representative ‘character, as executors, assignees, trustees, &c.; and therefore the Supreme Court refused to allow an amendment in an action by one of several partners, by adding the names of the other partners. In an appeal from a justice, the Court went so far in the case of Johnston & Lyon v. Fessler, (7 Watts, 48,) where the suit was brought against John Johnston & Co., to allow the name of Jacob B. Lyons to be substituted for the Co., on the ground that it was so understood by all parties, both these members of the firm having had notice of the suit, and the appeal being entered by their common agent and manager; but they held the rule to be, that the. cause of action, and the parties must substantially be the same as before the justice; and accordingly in Kelly v. Eichman, (3 Whart. 419,) the amendment was refused on the ground, that a new party, and a new cause of action, could not be introduced under .the name of an amendment. Here the plaintiff had entered a nolle prosequi, as to one of the defendants, Stanton, before the justice, and thereby severed him from the suit altogether. He could not be restored in the Common Pleas, by an amendment made by order of the Court, on the request of the plaintiff, and without any knowledge of the proceedings on the appeal, or participation in it. Neither was Day a party to the scire facias as defendant before the magistrate, as the amendment desired would have made him.

Judgment affirmed.