Nelson v. Guffey , 131 Pa. 273 ( 1890 )

Opinion,

Me. Justice Williams :

The history of the litigation brought to our attention by the bill and answer in this case may, without offence, be characterized as a remarkable one. In 1873, and for some time prior thereto, Blackmore and Nelson were engaged in business as partners. They owed William C. Guffey for goods sold prior to October 18, 1873, and he obtained judgment in the Common Pleas of Allegheny county, No. 1, on an award of arbitrators, for $9,652.64. Judgment was entered on the award on June 6, 1874. On July 7, 1874, a copy of the record of the judgment so obtained was filed in Westmoreland county, under the provisions of the act of April 16, 1840, P. L. 410, and a writ of fieri facias issued thereon, under which a levy on personal property of Blackmore & Nelson was made. But proceedings in involuntary bankruptcy had been begun against Blackmore & Nelson, by their creditors, on October 18, 1873, and on August 23, 1874, the United States District Court for the Western District of Pennsylvania issued an injunction to the sheriff of Westmoreland, restraining all proceedings under the fieri facias against the goods of Blackmore & Nelson. They were adjudged bankrupts on October 29th following, and on February 12, 1879, William Nelson obtained his discharge as a bankrupt from all debts in existence on October 18, 1878, when proceedings in bankruptcy were begun. We see no reason to doubt that this discharge was operative upon Mr. Guffey’s judgment, and we conclude that he saw none, for it was allowed to sleep for thirteen years. In January, 1887, he caused a scire facias to issue in Westmoreland, and an alias scire facias was issued in February. Both were returned nihil habet, and a judgment was regularly obtained against Nelson on two returns of nihil for $12,444.94. On this judgment a writ of testatum fieri facias was issued to the sheriff of Allegheny county, upon which a levy was made on Nelson’s property in that county. Instead of going to Westmoreland county, and moving to set aside the writ and open the judgment by default, Nelson applied to the Court of Common Pleas of Allegheny county, No. 1, in which the judgment had been originally-obtained, to open the judgment entered upon the award of arbitrators in 1874. This was refused on June 14, 1887, and on the 20th of the same month this bill was filed. The case was heard on bill and answer, and while an injunction was refused as against the sheriff who held the writ, it was awarcled against Guffey, the plaintiff therein, and made perpetual. This decree is the error assigned.

The act of April 16, 1840, P. L. 410, provides “that, in addition to the remedies now provided by law, hereafter any judgments, .... may be transferred from the court in which they are entered, to any other District Court or Court of Common Pleas in this commonwealth, by filing of record in said other court a certified copy of the- whole record in the case; .....and the case may then be proceeded in, and the judgments and costs collected by executions, bill of discovery, or attachment, as prescribed by the act entitled ‘ An Act relating to executions, passed the 16th day of June, 1836; ’ and, as to lien, revivals, executions, and so forth, it shall have the same force and effect, and no other, as if the judgment had been entered, .....in the same court to which it may be thus transferred.”

It will be observed that this act provides a remedy for the collection of a judgment “in addition to the remedies now provided by law.” It does not supersede or displace existing remedies. It has been accordingly held that the judgment entered in the county to which the record is transferred does not become a judgment, in the common interpretation of the word, of the county in which it is entered. It is record evidence of the existence of the judgment in the county where it was obtained : Brandt’s App., 16 Pa. 843. The court to which it is transferred has no power over it, except for purposes of execution, and cannot inquire into its validity, or make any order affecting its operation: King v. Nimick, 34 Pa. 297; nor can it be transferred, by means of a full copy of the record, to another county from that in which such derivative judgment has been entered: Mellon v. Guthrie, 51 Pa. 116. The plaintiff cannot have two writs of fieri facias running at the same time. The remedy given by the act of 1840 is additional, but it is not concurrent. So long, therefore, as a writ of fieri facias is outstanding on the original judgment, the plaintiff is not entitled to issue a writ upon the transferred judgment. The court in which the judgment was entered loses none of its jurisdiction or power by the transfer, and, if the original judgment be set aside for any reason, the judgment entered in another county falls with it: Baker v. King, 2 Gr. 254; Brandt’s Appeal, supra. It is thus apparent that the proceeding in the county to which the record is transferred is ancillary and dependent. The original power of the court in which the judgment was entered is not restrained or modified in the slightest degree by the transfer, nor by any proceedings based upon the copy of record filed in another county. The transfer is for purposes of lien and execution only, and the judgment, when revived in the county to which It is transferred, does not rise above its source, or confer any other power than that which the filing of the copy of record conferred. For all purposes, except execution, the original judgment continues to be the measure of the plaintiff’s demand against the defendant, and the evidence of what has been passed upon by the court. All inquiries into its regularity or effect, and all applications for relief from its operations, must be made to the court that pronounced it. The derivative judgment is the basis of process in the county in which it is entered. The regularity and execution of such process must be determined by the court that issues it, but its control extends no further than its own process.

We come now to inquire into the power of the courts of Westmoreland county to issue a testatum fieri facias upon the derivative judgment. The power to issue a testatum fieri facias is given by the act of June 16, 1836, P. L. 775. The section, so far as is material, is as follows: “Section 76. If the defendant in any judgment for the recovery of money shall have no real or personal estate in the county where such judgment may be obtained, it shall be lawful for the plaintiff, upon his own suggestion of that fact, verified by affidavit, without any previous writ* to have a testatum writ of fieri facias directed to the sheriff or coroner of any other county where the defendant may have real or personal estate, which shall be made returnable into the court from which it shall issue.” It is then made the duty of the sheriff to whom the testatum writ is directed to deliver it at once to the prothonotary of the Court of Common Pleas of his county, and the prothonotary is thereupon required to enter the same of record, and re-deliver it to the sheriff to be executed. The entry so made is to be a lien, for five years from the date of entry, on all the real estate of the defendant in the county.

Looking, now, at these several provisions, in their relation to each other, to the judgment on which the writ issues, and to the power of the court in which it was obtained to control it as the ends of justice may require, we are led to the conclusion that a testatum fieri facias should issue on the original, and not on the ancillary judgment. The plaintiff, if desirous to reach property of the defendant in another county than that in which his judgment is obtained, has an election whether to proceed by testatum fieri facias, or to transfer his judgment for purposes of execution by filing a copy of the record in such other county. He may take as many copies of his original judgment as he may need, and file them in as many different counties, but he cannot take a copy of record of one of the transferred judgments and make that the basis of a new transfer: Mellon v. Guthrie, 51 Pa. 116; and for the same reasons he cannot transfer the lien of such ancillary judgment by a testatum fieri facias. If this could be done, the rule in Mellon v. Guthrie, supra, would not only be rendered useless, and the lien.of the ancillary judgment be extended into the county to which the testatum is issued, but the court would have the control of its process in the county to which it goes, to the entire exclusion of the proper courts of that county. As the judgment on two nihils did not interfere in any manner with the complete control of the courts of Allegheny county over the judgment, it conferred no powers on the courts of Westmoreland which the filing of the copy of record did not give them. As the courts of that county could not send their process into Allegheny county for the collection of this judgment before the revival, they could not do so afterward. If they could, the result would be that the defendant would be deprived of the protection, and the courts of Allegheny county of the control over the judgment and its collection, which the law secures to them. The consequence of the application of these rules is that the issuing of the testatum fieri facias was unauthorized. It must be set aside by the court that issued it. That court has ample power in the premises, and its duty is so plain that we will not doubt its readiness to perform it on application.

What, then, will be the situation? The original judgment remains in, and under the control of the courts of Allegheny county, as fully as at any time since it was obtained. The ancillary judgment, with the judgment of revival, remains in, and under the control of the courts of Westmoreland. If the courts of Allegheny hold that the judgment is paid by the discharge in bankruptcy, the courts of Westmoreland are bound by such holding. If satisfied that the judgment by default should be opened, the courts of Westmoreland should make the proper order, and permit the defendant to be heard upon any valid reason he has to allege why execution should not issue against him. There is thus a clear and an adequate remedy at law for the defendant’s protection, and he must resort to it. Upon the facts stated in the bill and answer, the proper course to pursue is obvious. It is not to enjoin the plaintiff against proceeding with his testatum, — a writ wholly unauthorized, — but to send the defendant in the writ to the court that incautiously issued it, to move that it be quashed. The courts of Allegheny county have power to stay the hand of their officer temporarily, to afford the defendant time to make his application in Westmoreland, and should not hesitate to exercise it. Whether they might not treat it as a nullity, and stay proceedings upon it absolutely, it is not necessary now to determine. The orderly practice is to allow the court that issued the writ to correct its mistake by quashing it, as having been issued without authority.

The effect of the discharge in bankruptcy is not before us in the view we have taken of the case. It was, however, considered by the court below, and has been discussed by counsel. We see no reason to doubt that the defendant’s demand is extinguished by operation of the proceedings in bankruptcy, as the question is now presented to us; but as our conclusions are against the plaintiff in this bill, so far as his right to an injunction on the facts presented by it is concerned, we cannot undertake to dispose of that question. We hold that the case presented is not one for equitable relief, but one in which the remedy at law is plain, adequate, and within easy reach, and to it the plaintiff is remitted.

The decree of the court below is reversed, and bill dismissed, at the costs of the appellee.