Wilson & Anderson ex rel. First National Bank v. Arnold, Appeal, No. 75

Appeal, No. 75 | Pa. | Jan 6, 1896

Opinion bv

Mr. Chief Justice Sterrett,

When the defendant, as prothonotary of the court of common pleas of Clarion county, was directed to issue the alias (improperly called “ pluries ” ) testatum fieri facias in question, it was manifestly his duty to inspect the record of plaintiff’s judgment and see that the writ conformed thereto in every material particular. If he neglected to do so and in consequence thereof any part of the-claim was lost, he is liable to respond in damages to the extent of plaintiff’s loss. As shown by the record the judgment was regularly entered “ by virtue of a warrant of attorney .... for the sum of one hundred and one dollars, with interest, from May 31st, 1875, with costs of suit, release of errors, without stay of execution, and waiving exemption and inquisition.” The concluding waivers of “ exemption and inquisition ” are important features of the judgment, and should clearly appear in the body of the writ or by indorsement thereon, so that the sheriff charged with its execution may be fully advised that the defendant has waived his right to claim the benefit of the exemption law, and has consented to the condemnation of any real estate that may be taken in execution for the purpose of satisfying the judgment. In Hageman v. Salisberry, 74 Pa. 280" court="Pa." date_filed="1873-11-10" href="https://app.midpage.ai/document/hageman-v-salisberry-6234662?utm_source=webapp" opinion_id="6234662">74 Pa. 280, it was held that the terms and conditions of a confessed judgment, including waiver of inquisition and exemption, enter into and form a part of the judgment, modifying and qualifying its effect. That being so, it follows as a matter of course that on issuing execution process on such judgment, it is the duty of the prothonotary to follow the record thereof and not only recite or note the amount of the judgment, etc., but also its terms and conditions so far as the proper execution of the process may be affected thereby.

The fieri facias to the sheriff of Clarion county, and the testatum fieri facias to Clearfield county, both of which were re-burned nulla bona, were properly indorsed, respectively: “-Waivers, waiving exemption and inquisition,” and “ waiving stay of execution, exemption and inquisition: ” but, when the defendant came to issue the alias testatum in question, he neglected to note, in any form, the waiver of exemption and inquisition which so plainly appears upon the record of the judgment.

The result of this was that when the sheriff levied on personal property of one of the defendants more than sufficient to have satisfied the judgment, debt, interest and costs, the defendant claimed the benefit of the $300, exemption, and the property was accordingly appraised and all set apart to him under his-claim. Nothing was realized on the execution.

The testimony tended to show, and the jury would have been justified in finding as a fact, that plaintiff’s claim was lost in consequence of defendant’s neglect to indorse the waiver of exemption on the writ.

It follows from what has been said, that the court erred in charging as complained of in the first three specifications, and in not affirming plaintiff’s first and second points recited in the fourth and fifth specifications.

Judgment reversed and venire facias de novo awarded.