Ramsey v. Ramsey, Appeal, No. 99

Appeal, No. 99 | Pa. Super. Ct. | Oct 8, 1900

Opinion by

William W. Portee, J.,

The writ under which this case was tried is described, in the appellant’s paper-book, as a “ sci. fa. to continue the lien of above stated judgment et quare executionem non, returnable,” etc. There seems to he no substantial objection to this form, since the courts and the legislature have sanctioned the somewhat anomalous practice of reviving judgments by writs of scire facias quare executionem non: Dougherty’s Estate, 9 W. & S., 189; Phila. Fire, etc., Co’s. Appeal, 2 Pa. 263" court="Pa." date_filed="1845-03-10" href="https://app.midpage.ai/document/philadelphia-fire--inland-navigation-companys-appeal-6227266?utm_source=webapp" opinion_id="6227266">2 Pa. 263; Act of May 6, 1844, P. L. 564. The issues raised by the pleadings were whether the defendant had discharged the original judgment by performance of the conditions of the bond upon which the judgment was entered and whether he had been released by the surviving plaintiff from payment.

Objection is made that the writ of scire facias was not the proper process under which to try the rights involved, inasmuch as the original judgment was entered by confession upon warrant of attorney for breach of performance. In such a case, it is contended, the plaintiff was bound to proceed by fieri facias. This objection was not raised until after issue joined and trial in progress. The defendant’s pleadings raised the issues above stated. These were directed to ascertaining the right of the plaintiff to a revival of the judgment and the amount, if any, for which the plaintiff was entitled to have execution.

There seems to be no reason why the plaintiff was not entitled to the use of process for revival. But construing the writ to be strictly a scire facias quare executionem non, the defendant has no substantial ground for his objection. By this writ the court controls the use of its execution process, to prevent, by previous inquiry, a levy for more than the amount due on the judgment. The plaintiff might have issued a fieri facias in the first instance without previous writ of scire facias, by virtue of the stipulation in the bond and the provisions of the Act of May 19, 1887, P. L. 132. The amount of the execution was within the control of the court, who could, if necessary, have interfered to reduce it: Cochlin v. Commonwealth, 11 W. N. C. 460; Skidmore v. Bradford, 4 Pa. 296" court="Pa." date_filed="1846-01-25" href="https://app.midpage.ai/document/skidmore-v-bradford-6227523?utm_source=webapp" opinion_id="6227523">4 Pa. 296. But why should the plaintiff be now deprived of her verdict because she began by a scire facias ? No injury has by reason thereof befallen the defendant. Had a fieri facias been issued, it was within the power of the court to direct an issue on scire facias to determine the amount due and the right to execution: Templeton v. Shakley, 107 Pa. 370" court="Pa." date_filed="1884-10-16" href="https://app.midpage.ai/document/templeton-v-shakley-6237881?utm_source=webapp" opinion_id="6237881">107 Pa. 370. Here the parties, with the approval of the court below, have conducted such an issue to trial pursuant to a scire facias. A verdict has been rendered and a judgment entered. We are not disposed to reverse this judgment on an objection which goes not to substance and right, but rather to form of procedure within the discretion of the lower court.

The appellant contends that he was obliged to pay and furnish support as stipulated by his bond only “ when needed and demanded ” by the plaintiff and that, as no demand was proven and no need shown, he was relieved from payment. The court below answers this by pointing to the testimony of the plaintiff, wherein it is stated that the defendant having for a considerable time furnished the support and made the stipulated payments, arbitrarily gave notice of his intention to cease and that he thereupon did cease. This testimony made it for the jury to say whether the notice of refusal to perform was in fact given by the defendant. If given, proof of the performance of the empty act of demand, or of continuing need, not denied, was no longer required of the plaintiff. We find nothing in this contention. Nor is there force in the proposition that the record, as it stands, shows more than one judgment against the appellant for the same debt. There is but one judgment. Of this judgment, the amount presently due and collectible by execution has been fixed. The amount undischarged and continued to secure the performance of the conditions of the bond has been fixed. The amount discharged has been fixed. The judgment entered by the court logically and lawfully follows upon the verdict of the jury as rendered.

Finding no error committed, the judgment is affirmed.