OWENS v. McCLOSKEY.

161 U.S. 642 (16 S.Ct. 693, 40 L.Ed. 837)

OWENS v. McCLOSKEY.

No. 143.

Decided: March 30, 1896

June 17, 1861, judgment was entered on a bond and warrant of attorney, dated March 1, 1861, for $10,000, conditioned for the payment of $5,000 on the 2d day of March, 1861, with interest, in favor of Bernard Owens against John Henry and James Feeny, in the district court for the county and city of Philadelphia, now the court of common pleas No. 3 for the county of Philadelphia, state of Pennsylvania, and execution was issued thereon that day. February 3, 1866, a scire facias to revive this judgment was issued returnable the first Monday day of March, and served upon Feeny, but returned nihil habet as to John Henry. And a second writ was issued March 19, 1866, and returned nihil. The docket entries show: 'Ap'l 21, 1866. Judg't for want of an affidavit of defence.' But damages were not assessed until March 17, 1871, when they were entered at $6,525. On that day a sci. fa. to revive this latter judgment was issued, returnable the first Monday of April, 1871, and returned nihil, and April 11th an alias was issued returnable the first Monday of May, 1871, with a like return.

May 10, 1871, judgment was rendered 'for want of an appearance on two returns of nihil,' and damages assessed at $8,482.50. The record shows the assessment was made up of the amount of the prior judgment (assessed March 17, 1871, but treated as of the date of the interlocutory judgment), $6,525; interest from April 21, 1866, $1,957.50,—'real debt, $8,482.50.'

At the time the original judgment was rendered, John Henry was a citizen of the state of Pennsylvania, but he removed to the state of Louisiana in 1865, and became a citizen of that state, residing th re from September 5, 1865, until his death, January 3, 1892.

November 1, 1880, Bernard Owens, who was a citizen of Pennsylvania, filed his petition in the circuit court of the United States for the Eastern district of Louisiana against John Henry, as a citizen of Louisiana, setting forth the recovery of judgment against Henry and Feeny June 17, 1861, and the issue of the writs of scire facias, upon which he recovered judgment May 10, 1871, in the sum of $8,482.50, with interest from that date, together with costs, and prayed judgment, with interest and costs. Henry appeared and filed peremptory exceptions to the petition, which exceptions were sustained, and the plaintiff allowed to amend by declaring on which judgment he relied. Thereupon, Owens filed his supplemental petition, in which he elected to stand upon the scire facias judgment of May 10, 1871. Defendant again excepted, and also answered that, since September 5, 1865, he had been a citizen and resident of Louisiana, and for and during that time had not been a citizen of Pennsylvania, nor domiciled in said state, nor in any manner represented therein, nor been in any manner, by himself or his property, subject to the laws of the state of Pennsylvania; also pleading nul tiel record, and denying that the courts of Pennsylvania ever acquired jurisdiction over him by service or by voluntary appearance.

The case was submitted to the court for trial, a jury being waived, the issues found for defendant, and judgment entered dismissing the suit. While the case was under consideration, Henry died, and it was revived as against his testamentary executor, McCloskey. Thereupon a writ of error was sued out from this court.

Geo. A. King and W. S. Benedict, for plaintiff in error.

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Mr. Chief Justice FULLER, after stating the facts in the foregoing language, delivered the opinion of the court:

Judgments for money, whether rendered within or without the state, are barred by prescription in the state of Louisiana in 10 years from the date of the rendition thereof. Rev. Civ. Code La. art. 3547. The original judgment was recovered June 17, 1861, and this action was commenced November 1, 1880. Considered as brought upon that judgment the action was barred, but inasmuch as the original petition set up the judgment on scire facias, rendered May 10, 1871, in respect of which 10 years had not run, defendant comelled plaintiff to make his election as to which judgment he relied on, and he elected to stand on the judgment of May 10, 1871. The plea of prescription as to the original judgment therefore became unnecessary.

Ordinarily, the writ of scire facias to revive a judgment is a judicial writ, to continue the effect of, and have execution of, the former judgment, although in all cases it is in the nature of an action, as defendant may plead any matter in bar of execution, as, for instance, a denial of the existence of the record or a subsequent satisfaction or discharge. Fost. Scire Facias, 13, and cases cited; Tidd, Prac. 1090; 2 Sell. Prac. 275.

Conformably to the exigency of the writ, the judgment on sci. fa., the proceeding being regarded as a continuation of the original action, usually is that plaintiff have execution of the judgment mentioned in the writ with costs. Lil. Ent. 398, 638; Chit. Froms (9th Ed.) 635; Black, Judgm. § 498. But in Pennsylvania it is held that a scire facias is in such wise a substitute in that state for an action of debt elsewhere that the judgment should be quod recuperet, instead of a bare award of execution; and hence, that a judgment on scire facias cannot be avoided because the original judgment might have been. Duff v. Wynkoop, 74 Pa. St. 300; Buehler v. Buffington, 43 Pa. St. 278; Conyngham Tp. v. Walter, 95 Pa. St. 85. Accordingly, the judgment of May 10, 1871, was a judgment for the recovery of the amount of the judgment of 1866, with interest added thereon to date, and the judgment of 1866 was a similar judgment on the original jud ment of June 17, 1861.

Viewed as a new judgment rendered as in an action of debt, it had no binding force in Louisiana, as Henry had not been served with process or voluntarily appeared. And considered as in continuation of the prior action and a revival of the original judgment for purposes of execution, on two returns of nihil, it operated merely to keep in force the local lien, and could not be availed of as removing the statutory bar of the lex fori, for the same reason. Thompson v. Whitman, 18 Wall. 457; Pennoyer v. Neff, 95 U. S. 714; Machine Co. v. Radcliffe, 137 U. S. 287, 11 Sup. Ct. 92; Steel v. Smith, 7 Watts & S. 447; Evans v. Reed, 2 Mich. N. P. 212; Hepler v. Davis, 32 Neb. 556, 49 N. W. 458.

The circuit court was right, and its judgment is affirmed.

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