108 Me. 354 | Me. | 1911
Scire facias to obtain an alias execution upon a judgment.
It appears from the writ that plaintiff corporation recovered judgment in the Supreme Judicial Court of Cumberland County on the twenty-second day of June, 1909, against the defendant, Absolom C. Bellefleur, for the sum of $892.88, damages and costs taxed at
To plaintiff’s writ defendant demurs upon the grounds following :
1. There is no authority or warrant either in statute or common law for the remedy by scire facias as invoked by the plaintiff, where property of a judgment debtor attached upon the original writ has been seized by a deputy sheriff and sold at public auction, as is alleged to have been done by the plaintiff in his writ.
2. If such authority or warrant is held to exist the plaintiff has, by his election to pursue his remedy by bill in equity as alleged in his said writ, deprived himself of the right to any relief under, or benefit of, his action by scire facias.
Upon the first ground, rejecting the words "or common law” as surplusage, the demurrer must be sustained. Scire facias does not lie under R. S., c. 78, § 19, where upon the original execution real property has been sold and not levied upon by appraisement and set off: Piscataquis v. Kingsbury, 73 Maine, 326, 331.
However formerly held, a writ of scire facias is unquestionably amendable in the same manner as declarations in other cases: 2 Tidd’s Prac. (1st Am. Ed.) 1036-7; Foster on Scire Facias 20, 349, 373, 375; Jackson v. Tanner, 18 Wend. 526; Peacock v. People, 83 Ill. 331. Whether, after plea of nul tiel record, amendment may be made is not necessary to be determined. It has been held that scire facias being a judicial writ shall not abate for want of form: Foster on Scire Facias, 349: that errors in matter of form will not be noticed on general demurrer: McLellan v. Codman, 22 Maine, 308; that a general demurrer cannot reach a defect in the prayer; Barton v. Vanzant, 1 Mo. 192; and that the court will give judgment according to law and not according to the prayer of the plaintiff; Snowden v. State, 8 Mo. 483, 487. The defect which is the subject of the first ground of the special demurrer, being one of form, may be amended: R. S., c. 84, § 10.
Upon the second ground the demurrer cannot be sustained. The doctrine of election of remedies does not apply. The bill in equity and the writ of scire facias do not seek substantially the same relief. The former sought to convert an equitable title supposedly obtained by sale upon execution into a legal title. In this the plaintiff failed. The execution remains in fact unsatisfied. The present suit seeks revival of the judgment and a new execution thereon: Fleming v. Courtenay, 95 Maine, 135; Weeks v. Edwards, 176 Mass. 453. Moreover the doctrine invoked, as between proceedings at law and in equity at least, relates only to original suits: Laraussini v. Carquette, 20 Miss. 151.
The cases cited by defendant, Hussey v. Bryant, 95 Maine, 49; Jordan v. Haskell, 63 Maine, 193; Marston v. Humphrey, 24 Maine, 513, as well as Foss v. Whitehouse, 94 Maine, 491, and Larrabee v. Lumbert, 34 Maine, 79, are readily distinguishable from (the facts in the case before us.
Demurrer sustained.
Amendment allowable on such terms as may be ordered at nisi prius.