Prescott v. Prescott , 1876 Me. LEXIS 91 ( 1876 )

Libbey, J.

This is debt on two judgments, one recovered at the August term, supreme judicial court, 1868, for $680 debt or damage and costs of suit taxed at $121.75 ; the other recovered at the December term, 1871, for $24.50 costs of suit.

The right of plaintiff to recover on the second judgment is admitted.

To the right of plaintiff to recover on the first judgment, the defendant interposes two objections.

I. It is contended that scire facias, and not debt, is the proper remedy. K>. S., c. 76, §§ 17 and 18, is relied upon in support of this position. By § 17, “a creditor, who has received seizin of a levy not recorded, cannot waive it, unless the estate was not the property of the debtor, or not liable to seizure on execution, or cannot be held by the levy, when it may be considered void, and he may resort to any other remedy for the satisfaction of his judgment.”

By § 18, “when the execution has been recorded, and the estate levied on does not pass by the. levy for causes named in the preceding section, the creditor may sue out of the office of the clerk, issuing the execution, a writ of scire facias, requiring the debtor to show cause why an alias execution should not be issued on the same judgment; and if the debtor, after being duly summoned, does uot show sufficient cause, the levy may be set aside, and an alias execution issued for the amount then due on the judgment, unless during its pendency the debtor tenders in court a deed of release of the land levied on, and makes it appear that the land, at the time of the levy, was and still is his property, and pays the expenses of the levy and the taxable costs of the suit; and the judgment shall be satisfied for the amount of the levy.”

In Grosvenor v. Chesley, 48 Maine, 369, it was decided in a case falling, within the provisions of section eighteen that the only remedy is scire facias. Is this case within the provisions of that section ? We think not. That section contemplates an execution issued upon the judgment, which has been returned satisfied by a levy and recorded. By an examination of the execution in this case, it does not appear to have been issued upon the judgment. The judgment was for $600 in lieu of alimony and costs of suit taxed at $121.75, payable in twenty days after the final adjournment of court and for overdue monthly installments amounting to $80. The executions describes the judgment on which it was issued as for $680, debt or damage, and costs of suit taxed at $121.75, with interest from date of judgment. There is a fatal variance between the judgment rendered, and the judgment described in the execution. For that reason the execution was void. It -svas an execution issued without any such antecedent judgment as is described in it. The question of the validity of the execution was before this court in Prescott v. Prescott, 62 Maine, 428, and it was declared void for the reason above stated. There has been no execution upon the judgment introduced by plaintiff and upon which he relies. By an examination of the record of the execution and levy, it does not appear that this judgment was satisfied. There is no occasion for scire facias, to set aside a levy not appearing to be a satisfaction of the judgment, and for an alias execution upon the judgment, there having been no first execution issued upon it. In this case debt is the proper remedy.

II. It is contended that there is a fatal variance between the record of the judgment introduced in evidence, and the one described in the plaintiff’s writ, and that for this reason plaintiff cannot recover on the first judgment. We think this objection is well taken. The judgment declared on in the writ is “for the sum of six hundred and eighty dollars, debt or damage and one hundred and twenty-one dollars and seventy-five cents costs of same suit.” I3y this judgment the whole sum was due at the date of its rendition, and would draw interest from that time. By the decree or judgment in evidence, the “$600 in lieu of alimony and the costs of suit were payable in twenty days from the final adjournment, and would not draw interest till after that time; so it is apparent that the judgment in evidence is not correctly set out in the writ. The description of the judgment in the writ is the same as that in the execution upon which the levy was made, and which this court, in Prescott v. Prescott above cited, held to be a fatal variance. But it is a misdescription which is amendable, and the plaintiff has leave to amend by describing the judgment correctly, upon such terms' as the presiding justice at nisiprius may determine, and, upon such amendment being made, judgment is to be entered up for plaintiff for both judgments; otherwise for the second judgment only.

Appleton, C. J., Walton, Dickerson, Barrows and Daneorth, JJ., concurred.