15 Pa. Super. 214 | Pa. Super. Ct. | 1900
Opinion by
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.
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. 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. 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.
Finding no error committed, the judgment is affirmed.