45 Md. 501 | Md. | 1877
delivered the opinion of the Court.
The scire facias in this case as originally sued out was against five defendants, reciting a judgment recovered hy the State against six defendants. The judgment recited was recovered at the November term of the Circuit Court for Prince George’s County, 1861. The defendants to the original judgment as recited were Mason E. McKnew, William McKnew, Thomas Harvey, John N. Robey, Ninian Beall and George W. Duvall, of George, and the scire facias was issued against all except the last named defendant; the judgment having been entered to his use by order of the State’s attorney, and the scire facias issued for his benefit.
The first writ of scire facias was returned “nihil” as against all the defendants therein named; and, upon renewal, the second writ was returned “nihil, John N. Rohey, scire feci the rest.” Counsel appeared for the defendants served, and the writ was renewed as against Robey, and, at the October term, 1861, was returned “scire feci.” That defendant failing to appear, fiat was entered as against him, though the record does not show for what amount.
The defendants who appeared by counsel moved to quash the writ for certain defects apparent upon its face; and this motion led to two several amendments of the writ, the last being made as of the first of September, 1873. It was to the writ as thus amended that the defendants pleaded, and with other pleas, they interposed the plea of nul tiel record. That plea was replied to and issue formed thereon, which was tried by the Court, and which trial resulted in a finding in favor of the plaintiff. The other issues formed on the pleadings were tried by a jury, and a verdict was rendered in favor of the plaintiff, the peculiarities of which will be noticed hereafter.
At the trial of the issue of nul tiel record, it is stated that the plaintiff offered in evidence the record of the
The Court having disposed of the issue of nul tiel record, the remaining issues to be tried were formed on pleas of payment; and upon trial of these issues a verdict was rendered thus: ‘‘Verdict for plaintiff for $2722.66, damages on M. E. McKnew, and for $2268.90, damages against sureties.” There was a motion in arrest of judgment, founded upon various reasons assigned, but the motion was overruled, and judgment entered upon the verdict as rendered.
Judgments may be arrested for either defects in the pleadings or defects in the verdict. The pleadings may
In this case, the scire facias was intended to be issued in pursuance of the Act of 1864, ch. 243, which provides that in any case where judgment shall be recovered by the State against any principal debtor and a surety or sureties, and said judgment shall be satisfied by said surety or sureties, the same shall be entered by the State’s attorney to the irse of the surety or.sureties satisfying the same, on filing the certificate of the Comptroller stating that said judgment has been so satisfied; and said surety or sureties shall then be entitled to execution in his or their own name or names against the principal and the other sureties, in the same manner and subject to the same provisions contained in sections 6 and 7 of Article 9 of the Code, to which the Act of 1864, ch. 243, is a supplement.
The 6th section of the Article referred to provides, that where any person shall recover a judgment against the principal debtor and surety, and the judgment shall be satisfied by the surety, the creditor shall assign the same to the surety, who shall, thereupon, be entitled to execution in his own name against the principal. And the 7th section of the same Article provides, that where any judgment shall be rendered against several sureties, and one of them shall satisfy the whole, the plaintiff shall be obliged to assign such judgment to the surety satisfying the same, who shall be entitled to execution against the other sureties in the judgment for a proportionable part of the debt or damage paid by such assignee.
These two sections, being referred to in the Act of 1864, ch. 243, and the latter Act being made subject thereto, are to be construed as part of the Act of 1864, ch. 243, and we are to gather from the three sections read as one statute, what remedy the Legislature really intended to provide for the surety.
It has been repeatedly decided that a scire facias is in the nature of a declaration, and that, it should contain upon its face such a statement of facts, as to justify the process in respect to the form in which it is issued, and the persons who "are made parties to it. Prather vs. Manro, 11 Gill & J., 261; Warfield vs Brewer & Keefer, 4 Gill, 265. It should contain such proper recitals as to show in what right, and for what amount, it is issued; and this with a sufficient degree of certainty to enable the Court to see and determine for whom, and for what amount, to award execution.
In the first jfiace, the judgment recited is wholly defective. It recites a judgment recovered by the State against the defendants therein named, for $26,500, “being the penalty of a certain bond before that time made and executed by the said defendants to the said State of Maryland, as also the sum of $11.50, costs,” and nothing more. This is only the formal part of the judgment; and the amount actually due, if ascertained, is omitted. In suits upon penal bonds with collateral conditions, the judgment is entered for the penalty, to be released upon payment of the sum found to be due, with interest; “and the sum really due as aforesaid, or in any other manner ascertained, upon bonds and other instruments of writing, with penalty, shall be considered in law as the true debt, and shall be so pleaded by and allowed to administrators and others.” Code, Art. 75, sec. 63. If the judgment was perfected, it should have ascertained the true amount due ; and if it was not, but only entered for the penalty of the bond sued on, without further ascertainment, the judgment was interlocutory, and not binding as a final judgment, and therefore not in a condition to be executed. Clark vs. Digges, 5 Gill, 109. The qcire facias therefore does not set forth a good and perfect judgment. If the real amount due was ascertained, it formed the substantial part of the judgment, and should have been set forth in the scire facias ; as it is upon the judgment recited in the writ that execution is awarded. Moore vs. Garrettson, 6 Md., 444.
Again, the scire facias does not recite for whom George W. Duvall, the party suing out the writ, was surety, except inferentially; but, taking such fact to be sufficiently stated, if the penalty of the bond recited in .the writ is to be taken as the true amount of the original recovery, there is no sufficient statement, as against co-
But again, the sheriff was commanded by the writ to make known to Mason E. McKnew, William McKnew, Thomas Harvey, John N. Robey and Ninian Beall, to appear and show cause why the plaintiff, Duvall, should not have execution against the said Mason E. McKnew, for a certain sum, and against William McKnew, for a certain other sum, and not against the other parties, followed with the suggestion that Harvey, Robey and Beall were insolvent. The object of the writ, therefore, would seem to have been to revive the judgment and obtain execution against only two of the original defendants. In this the writ is certainly defective; and, taking it as a whole, it utterly fails to present a case to entitle the plaintiff to execution against his co-sureties.
It has been contended in argument that the defects in the writ have been cured by the verdict; but it is clear that the defects are of a character not to he so cured; and that being so, they are liable to be taken advantage of on motion in arrest of judgment.
But the verdict itself is fatally defective. It was rendered for a certain sum as against Mason E. McKnew, and for a certain other sum, in solido “against sureties.” In the first place, this does not accord with the writ, and, in the second place, it is uncertain who are the parties embraced by the term “sureties.”
As we have seen, Robey's name appears in the present writ as one of the defendants, yet the writ was returned nihil as to him, and, upon renewal, a fiat was entered against him at the October term of the Court, 1871. Now, the term “sureties,” as employed in the verdict, without restriction as to persons embraced by it, leaves the matter in doubt and uncertainty, whether Robey,
Judgment reversed.