157 Pa. 407 | Pa. | 1893
Opinion by
The plaintiffs, on November 12, 1877, obtained judgment before Alderman Spurrier, of Lancaster, against defendant in sum of $76.32. There were regular service, appearance and hearing on the day appointed, proof of claim, then judgment. The learned court below was clearly right in holding that the judgment of the alderman should not be disturbed. The only question for consideration is, whether the subsequent proceedings are clearly authorized by statute.
After the judgment was entered, on 4th of December, 1877, plaintiffs issued execution, to which the constable returned “ no goods ; ” February 6,1878, alias execution issued, to which there was a like return. The judgment then slept on the alderman’s docket until November 21, 1891, nearly fourteen years, when plaintiffs took a transcript, entered it in the common pleas, and at once issued a testatum fi. fa. to the sheriff of York county, who seized defendant’s personal property. Defendant then obtained from the Lancaster common pleas this rule to show cause why execution should not be set aside. On hearing, the court below, being of opinion that the proceeding was authorized by act of June 24, 1885, discharged the rule, and from that decree comes this appeal.
The question raised is not altogether free from doubt. The act of 1885 says: “ In all cases where a judgment has been obtained before a justice of the peace, city recorder, magistrate or alderman of this commonwealth, and no appeal or certiorari has been taken to said judgment, and a transcript of said judgment has been filed in the office of the prothonotary of the county where said judgment is obtained, such judgments shall
As already noticed, this transcript shows a return of “ no goods ” by the constable immediately after the judgment was rendered. Hence, it is argued by appellees, if under the act of 1885 when filed in the office of the prothonotary it is to “ have all the force and effect of a judgment originally obtained in the common pleas,” the right to issue execution to York county and levy on defendant’s personal property cannot be denied. To give this act the scope which, standing by itself, its language would probably warrant, the right claimed by plaintiffs would follow. But, in construing a statute, the question is not alone how comprehensive and sweeping an effect, from its words, can be given it, but what, in view of the existing law and the absence of express repealing words, was intended ?
° For more than thirty years there had been upon the statute book this act: “ No execution shall be issued on a judgment rendered before a justice of the peace or alderman, after five years from the rendition of such judgment, unless the same shall have been revived by scire facias or amicable confession: ” Act of May 5, 1854.
This law was passed to meet a very general demand for it; before its passage, cases of manifest injustice and great hardship were of frequent occurrence, because of sudden seizures of property of small debtors, without warning, on old judgments remaining open on justices’ dockets. In some cases, the defendant claimed he had made payment to the officer or the plaintiff, and no entry had been made; and up until the act of 1869, he was not even heard as a witness ; in some cases, the justice who entered the judgment had died or removed, and the docket was in possession of another, who certified the transcript. To require that plaintiff, at the expiration of five years, should call on his debtor by scire facias to show cause why execution should not issue, before making seizure of his goods, was no hardship to the creditor, and gave an opportunity for hearing to the debtor. This act had been in force more than thirty years, with the approbation of the people and the legal
The debtor may have paid the judgment to the plaintiff and all evidence of it have been lost; the right of the plaintiff, by his death, may have passed to personal representatives having no knowledge of the payment; a dishonest or neglectful officer may have received the money, and in the meantime may have died or removed. The first warning the debtor has that payment is still claimed, is the seizure of his goods by the sheriff. It is but an inadequate remedy to say, he can travel from his home, perhaps in a distant county, and make application to the court from which the execution issued to set it aside; this is but saying to him, even if he can bring proof of payment, he shall be harassed for months with a lawsuit, and in the meantime his goods shall remain in custody of the sheriff.
All the evils which the act of 1854 sought to cure are, under such a construction of the act of 1885, revived. Unquestionably, the legislature could have repealed the act of 1854, but it did not, either expressly or by implication; it stands in full force, and is to be given the effect which its peremptory language demands.
In view of this, then, what effect is to be given the act of 1885 ? It is a maxim that later statutes, which do not abrogate settled practice or repeal former statutes, are to be expounded as near to the use and reason of the prior law as can be, without violation of their intent. With the act of 1854, then, not affected by the act of 1885, we must give the last act such effect as shall carry out its purpose in harmony with the first one.
At the date of the passage of the act of 1885, transcripts had for seventy-five years been filed under the act of March 20, 1810, by the express terms of which act they became liens on
Then, taking the two acts together, it is meant that the judgment on the justice’s docket, alive, ready for execution for five years from the date it was rendered, can, during that time, by transcript, be entered in the common pleas, and if there be a return of “ no goods ” to execution upon it in that time, either before or after filing of transcript, it has all the force of a judgment of the common pleas originally obtained in that court. But if the judgment be impossible of execution under the act of 1854, because five years have elapsed, then scire facias must issue on it as provided in that act, and, after the judgment on the scire facias is had, there must be a return of “ no goods ” within the next five years by the constable, except now under the act of 1889, where the judgment is $100 or upwards, before execution can be levied on either real or personal estate from the common pleas. Unless this be so, the act of 1885 was, up until the act of 1889, of no benefit whatever to the judgment creditor who had not issued execution, had a return of “ no goods,” and filed his transcript within the first five years from the entry of his judgment. By the act of 1885, he cannot issue execution from the common pleas until after execution from the justice’s docket; if he now issues before the justice on a sum under $100, the court will set the execution aside on certiorari, because issued in direct violation of the prohibition of the act of 1854. He must, first, in all cases, whether under or over $100, before he can get his judgment ripe for execution in the common pleas, if he have allowed the five years to elapse, issue scire facias before the justice; or, as held by this court in Green v. Leymer, 3 Watts, 381, he may file the transcript of his judgment in the common pleas, issue scire facias thereon, there, and have judgment, on which execution can issue against either real or personal property. But, in either ease, the defendant would be warned, and have his day in court to show payment.
We are clearly of opinion, it was not intended by the act of 1885 that the creditor, by the mere filing of a transcript of a judgment fourteen years old, without notice to the debtor, should thereby have the right to seize the debtor’s property in any county in the commonwealth. While the judgment of the
The act of May 19, 1887, clearly refers only to judgments originally obtained in courts of record, or which, by regular proceedings according to the course of the law before inferior courts, have by transcript been given the force of judgments obtained in the common pleas. It was not intended to declare a transcript of a judgment from an alderman’s docket, filed more than five years after the judgment was rendered, without a scire facias, a judgment of a court of record.
The act of May 9, 1889, which dispenses with execution before the justice on judgments of $100 and upwards, only confirms the view we have taken of the intent of the act of 1885. It does not dispense with scire facias after five years, and in this essential particular does not touch the act of 1854. The proviso contemplates an immediate filing of the transcript after judgment, for it says nothing in the act shall deprive the defendant of the right of certiorari and appeal, notwithstanding the entry of the transcript and execution thereon from the common pleas. As both certiorari and appeal must be taken within twenty days from entry of judgment, the transcript, it was assumed, would be filed promptly after judgment. In neither of the three acts, 1885, 1887, or 1889, is any intention disclosed to revive a judgment, by the mere filing of a transcript, which, under the act of 1854, had become lifeless.
For these reasons, we think the decree of the court below, in so far as it removes the stay of execution, was error; therefore it is directed that test. fi. fa. No. 15, directed to the sheriff of York county, be set aside; the costs on said execution and on this appeal to be paid by appellees.