Hogg v. Charlton

25 Pa. 200 | Pa. | 1855

The opinion of the Court was delivered by

Lewis, C. J. —

The rule of Court authorizes a judgment for want of an affidavit of defence in “ all actions of debt, or scire facias,” “ on judgment, or other record.” The present is an action of debt on a judgment recovered in New York, and is within the rule. Independent of any special legislation on the subject, the District Court had the power to adopt the rule in question. It requires an affidavit of the plaintiff stating the amount verily he believed to be due from the defendant, and a copy of the “record” “on which the action has been brought,” to be filed with the prcecipe. It is admitted, in the statement of the case, presented by the plaintiff in error, that an exemplification of the record of the judgment obtained in New York was filed, and as neither a copy of it, nor a copy of the docket entries in this cause is given in the paper-book, the presumption is that the affidavit and the copy of the record were filed according to the rule of Court. It was not necessary to file a copy of the note on which the judgment was obtained in New York. The note was extinguished by the judgment. The present action is brought upon the judgment, not upon the note. Filing a copy of the latter would not be a compliance with the rule.

The remarks of the judge in delivering the opinion in McCleary v. Faber, 6 Barr 476, must not be understood as requiring a copy of the original cause of action to be filed, after it has been extinguished by a judgment, and when the action is brought upon the judgment.

The supplemental affidavit of the defendant discloses no defence. The plaintiff has a right to seek satisfaction out of the funds in the hands of the receiver in New York, and to pursue his remedy against the defendant in this state at the same time. The bill in equity to obtain an application of so much of the funds in New York as shall be sufficient to satisfy the plaintiff’s judgment, is not a bar to proceedings at law in this state. He may pursue both remedies until he obtain satisfaction from one of them. He is not chargeable with attaching the funds. He had no agency in placing them in the hands of the receiver. That was the act of the defendant himself.

This .view of the case renders it unnecessary to consider the rule affirming the judgment for defects in the paper-book.

Judgment affirmed.