Allen v. Liggett , 1876 Pa. LEXIS 183 ( 1876 )

Chief Justice Agnew

delivered the opinion of the court,

A brief statement of facts is necessary to an understanding of the questions in this case. On the 26th of April 1868, Liggett brought an action of trespass quare clausum fregit against DuBois and Allen. Allen was not served, and the declaration reciting the return of nihil as to Allen, set forth a joint trespass. The case was tried against DuBois, a verdict against him, December 19th 1869, for $468, and judgment May 11th 1868.

On the 28th March 1870, Liggett issued an alias summons, No. 115, May Term 1870, against Allen, which was served on him November 10th 1870. ° The record was amended by striking out the word “ alias” and all reference to former proceedings against Allen. A declaration was filed, a trial, and verdict, and judgment against Allen for treble damages, $1982. Two questions are raised : 1. Was it error, by an amendment, to permit the action to stand as a separate suit against Allen? 2. Was Allen discharged by the former proceeding against DuBois ? The determination of the first question depends upon the decision of the second, for if a separate action can be maintained against Allen after the recovery against DuBois, the amendment was proper. Calling the second action an “ alias” did not make it so conclusively. If Liggett could maintain a separate action after recovery against DuBois, he was not bound to enter the' continuance in the first action to keep it open as to Allen, but might proceed by a separate summons. Where a summons is not served, a plaintiff at common law may prevent its abatement by entering the continuances from term to term, and then issue his alias to bring in the defendant. In this wise he may prevent the Statute of Limitation from barring his action: Westmoreland Bank v. Rainey, 1 Watts 30. But there is nothing to prevent his abandoning his first summons and beginning anew. Indeed, at common law, in the case of a scire facias to revive a judgment, the alias was treated as abandoned if not issued within a year and a day: 2 Sellon’s Practice 189, 190 ; Vitry v. Dauci, 3 Rawle 13; Davidson v. Thornton, 7 Barr 134. So an alias sci. fa., issued after a lapse of five terms from the former, is considered inefficient to preserve the lien of a judgment which has expired in the interval: Westmoreland Bank v. Rainey, supra; Silverthorn v. Townsend, 1 Wright 267. Before the Act of 1827, a testatum fi. fa. might be thus abandoned: Cowden v. Brady, 8 S. & R. 505. In the case before us, eight terms, or nearly two years, had elapsed before the so-called alias was issued. We do not say that the continuances might not have been entered up to continue the first action. But clearly, if the plaintiff chose to abandon it he could, if he had a right to proceed separately against Allen;

This brings us to the second question. The essential difference between this ease and many of those cited by the plaintiff in error is, that here there was no service of the first writ upon Allen, and he was suffered to drop out of the case. This distinguishes it from Cridland v. Floyd, 6 S. & R. 412. There all were served, two pleaded to issue, and rules to plead were issued against the others. A trial, verdict and judgment took place as to the two who pleaded. It was held that, under the circumstances, the trial and judgment were equivalent to a nolle prosequi and discharge of the others. Cridland v. Floyd was followed in Breidenthal v. McKenna, 2 Harris 160, a case similar in its facts. As the weight of the argument of the plaintiff in error is thrown upon Cridland v. Floyd, it is proper to notice it particularly. The decision was made in the year 1821, before the spirit of liberal amendment had prevailed in the state. The opinion was by Justice Duncan, a most learned and able judge, but a strict adherent to common-iaw rigidity. He admits that this branch of the law of actions is very difficult, and proves his concession by a most elaborate review, in eight pages, of the numerous and discordant precedents, concluding with an apology for its length by saying : “ To explain the reasons of the opinion, required a general view of the clashing opinions and inconsistent decisions on this dry but curious subject.”- The case is evidently not a precedent to bind us, certainly not beyond its facts, in view of the present liberal doctrines of amendment, sanctioned by so many statutes and decisions since made. The spirit of the present age is to reach the merits of a case, ut res magis valeat, quam pereat. Even the earlier decisions tended this way. The want of service of the writ has been held to be a very important fact. Thus, in Purviance v. Dryden, 3 S. & R. 402, a defendant not served was objected to as a witness, on the ground that he was a party to the suit. Chief Justice Tilghman said the writ was issued against him as well as Purviance, but he never was' summoned, and the action, according to our practice, was carried on against Purviance alone. In fact, the witness was not a party to the suit, and therefore there is no.force in this objection. The ease of Taylor et al. v. Henderson, 17 S. & R. 453, is not contradictory. It was decided on the ground of Page’s interest, and he was in fact served with the writ, and joined in a commission to take testimony, though he did not plead to issue. The principle of Purviance v. Dryden was followed in Kennedy v. Philipy, though the case was not cited in the report: 1 Harris 408. There a tort-feasor not joined in the action was held to be a competent witness against a number of co-trespassers, reversing the opinion of Judge Black, who thought him incompetent, the action being joint against some of them.. There is no ground in the authorities for the application of the maxim stare decisis to the case before us, and we are free to decide it upon principles of justice and proper analogy to other actions.

It cannot be pretended that there is justice in permitting a co-trespasser to escape the consequences of his wrong, especially in a case where his wilful injury is so obnoxious, the law visits his wrong with treble damages. Why should the fact that he was not served with the process in the former action discharge him ? It was no fault of the plaintiff, or. of the sheriff, if he could not reach him. And at this point it is proper to notice the difference between similar actions brought in this state and in England. Here we have no process of outlawry to reach the property of the defendant. There the action is suspended until, by outlawry, the defendant not served can be reached through his effects. Remarking .upon this, Chief Justice Tilghman said: “Having no process of outlawry, we are in a worse situation than they are in England. With us the plaintiff is without remedy:” Downey v. Bank, 13 S. & R. 288. With justice on this side, and controlled by no stubborn precedent, we cannot hesitate to adopt the analogy presented by the legislation in reference to joint contracts. Under the Act of 6th April 1830, a judgment against one of several joint obligors, promisors or partners, is no bar to a suit against the others not served. So, confession of judgment is not a bar. Under the Act of August 2d 1842, several judgments against defendants are good in the same action, and may be revived, or the money collected as upon one judgment. There is still a further Act, in pari materia, of April 11th 1848,1 Brightly’s Purd. 826, pl. 34, 35, 36, 37, 38, 39. Adding to this the ample power of amendment conferred, even to the change of the form of action and the correction of verdicts, we may repeat the language used in Weikel v. Long, 5 P. F. Smith 241, that “the whole common-law theory on the subject of actions against joint debtors, partners and judgment-defendants has been deranged by legislation.” There is a greater reason for applying the principles of these acts to joint tort-feasors than to joint contractors, for the former have no ligament of contract with the plaintiff to bind them together. They cannot say to him, this is the form of your agreement with us, and you must abide in it. Upon the whole case, we perceive no error to correct, and the judgment is affirmed.