Wintz v. . Webb , 14 N.C. 27 ( 1831 )

(28) The defendant denied, upon affidavit, having any of the goods or estate of Joseph Wier in his possession, under any conveyance made by the latter to defraud his creditors. Issue was taken by the plaintiff, and the jury, under the charge of his Honor, Judge Mangum, found "that the defendant did claim title to and did hold and secrete the property of Joseph Wier, and held and used it to avoid or delay the payment of the just debts of the said Joseph, which said property was of the value of $900." Whereupon judgment was entered in favor of the plaintiff for the amount of his original debt and costs, and the defendant appealed. Many points were made on the trial below, which it is unnecessary to notice. The case stated that pending the scire facias, Joseph Wier was executed for a capital felony (vide 12 N.C. 363), and that no administration had been taken on his estate. No error to the prejudice of the appellant is perceived in the opinions of the judge of the Superior Court, either upon the questions of evidence or the instructions to the jury. Were there nothing more in the case, the judgment would therefore be affirmed. But the case states other facts, which the Court deems fatal to this proceeding.

It is a scire facias under the Act of 1806 (Rev., ch. 700). That in its nature is not an original, but a derivative writ, dependent upon the continuing existence and obligation of the record, to enforce which it issues. This statute, when giving it in the cases provided for in it, does not change or pervert its uses. The act declares that upon the plaintiff's affidavit that the defendant hath no visible property to satisfy his judgment, and suggesting that he hath fraudulently conveyed it to avoid or delay the payment of his just debts, or that some other person is in possession of the property, and conceals it, the court in which the (29) judgment was rendered may, upon such judgment, issue a sci. fa. to such person. If it be acknowledged or found that property is held or claimed by such person, "the court shall and may order the same to be delivered up, or made subject to the judgment of the plaintiff." If the effects be money, or have been used, wasted or destroyed, then there is to be "judgment for the plaintiff against such party" for the amount or value, to be ascertained by a jury.

To warrant the sci. fa., it seems certain that the first judgment must be in existence and in full force. The sci. fa. is to be issued "upon any judgment." But what renders it clear is that in case the property be specific, and remaining in specie, there is to be no judgment for the debt, nor for the value of the property, but that it be delivered up and made subject to the judgment. The judgment must then be in a state to warrant execution on it, for without that, the property cannot be made subject to it. Here the case states that Wier, the original defendant, died in May, 1828, pending this suit upon scire facias, and that no administration hath ever been taken on his estate. And Wintz, the original plaintiff, was also dead, and his administrator had not revived the judgment. The judgment was therefore dormant when this case was tried below. No order for the delivery of the property could be effectual; and, therefore, no such order could be properly made. It is analogous to the death of the defendant in original attachment, after a collateral issue joined between the plaintiff and garnishee. Both proceedings are dependent upon those original ones, out of which they have grown. The death of the party, or any other matter which is destructive to the principal suit, arrests the progress of that which is incident.

If this were not so in a case where the suggestion was that the party had the defendant's money, or had used, wasted, or destroyed his goods, it nevertheless must be so in this case. The affidavit and sci. fa. here make no such suggestion; but are restricted to a fraudulent conveyanceof the property to Webb, and a concealment by him; and the jury find that he held or used Wier's property (without saying what (30) in particular) to the value of $900. There was therefore no authority to give judgment against Webb personally; but only the first judgment prescribed in the act. An absolute judgment against Webb for the plaintiff's debt was given, which, for this reason, was erroneous, even if the judgment against Wier had then remained in full force. But after the death of both the parties to the original suit, no further step could be taken until that was revived by the administrator of the original plaintiff against the administrator of the original defendant. This proceeding is subsidiary to the first judgment, and died with it. The whole had abated.

PER CURIAM. Judgment reversed.

Cited: Malloy v. Mallett, 59 N.C. 347.