10 Pa. 381 | Pa. | 1849
This ease is ruled by Fursht v. Overdeer, 3 W. & S. 470, with which it is identical in principle. That was determined under the well settled doctrine, that a judgment recovered in a scire facias sued out to revive and continue the lien of a prior judgment, being quod recuperet, is, for some purposes, considered
But it is thought the case of Fursht v. Overdeer, as reported, is in conflict with the previous cases of Colingwood v. Carson, 2 W. & S. 220, and Custer v. Detterer, 3 W. &. S. 28. That it was not so considered by the court, is plain from the fact that it was decided in the short space of five months after Custer v. Detterer, which must have been fresh in the memory of the members of the court, and yet no notice is taken of the supposed clashing de-, terminations. A very little examination and reflection will make it obvious there is no such discrepancy. Nothing further was determined in the first of these cases, than that where there have been judgments sur sci. fa. between the original parties, the plaintiff is not at liberty to disregard these, by a recurrence t'o the original judgment, which has already been made the foundation of legal proceedings. The whole reasoning of the court proceeds upon the ground that, as between the parties to the scire facias, the last judgment must be regarded as having concluded their rights, upon the principle of res adjudicata. It is likened to a suit upon a bond in which judgment has been rendered, and which therefore cannot, from motives of public policy, as well as upon technical grounds, be made the subject of a new action. The same may be said of the second of these decisions. It is not very lucidly reported, and it is, therefore, difficult to discern what were the precise facts; but this much is disclosed. A scire facias was issued in 1831, sur a judgment recovered in 1829, with notice to the terre-tenants. These, with the defendants in the original judgment, appeared and took defence, and, according to the charge of the court below, a judgment was rendered in their favour on demurrer. Putting this aside, the plaintiff, more than five years after the rendition of the first judgment, sued out upon it another scire facias against the same defendants, or their privies, and again attempted to charge
To suffer this would be, not to promote, but to defeat the statutory
Nor is the right we would accord to a judgment-creditor -productive of the inconveniences pointed to on the argument. He is not, as seemed to be imagined, privileged capriciously to select any one of the several judgments rendered, as the ground of further proceeding, with liberty to abandon it at his pleasure, in .order to try h.is fortune with another of the series. I should say he is to be confined to the last of these, possessing the quality of lien he desires to prolong. This rule, while it is conservative of the conclusive character of a judgment, embracing the same objects as between the same parties, operates to protect the owner of the land against multiplicity 'of suits and undue accumulation of costs. If, as here, a part of the sum secured by the judgment' be discharged by execution, or otherwise, the terre-tenant may plead it, or, if he omit to do so, perhaps the court, in the exercise of its inherent power over its own process, might interfere to prevent injustice. As to the costs of the proceedings had against the defendant in the original judgment alone, it is certain these could not be visited upon the terre-tenant, who, in respect to them, is a mere stranger.
Our conclusions show that the court below was right in rendering judgment for the plaintiff below, on the demurrer. Wherefore,
Judgment affirmed.