Lichty v. Hochstetler , 1879 Pa. LEXIS 368 ( 1879 )

Mr. Justice Gordon

delivered the opinion of the court,

Judgment was entered in the Common Pleas of Somerset county against Jonathan J. Weller, at the suit of William B. Humbert, for the use of Daniel Beachy, on the 27th day of February 1872. On the 2d day of February 1877, a scire facias to revive this judgment, with notice to all terre-tenants, was issued and served on the 13th of the same month, on the defendant in the judgment alone. Afterwards, to April Term 1878, an alias was issued, which was served on Adam Hochstetler ot al., as terre-tenant.

On this condition of the record, the question was, whether, as to the terre-tenants, the alias writ was in time. The court below held, in answer to this question, that the scire facias must not only issue within the five years prescribed by the act, but that it must be prosecuted with reasonable diligence, and that the suffering of fourteen months to elapse from the service of the writ on the defendant to the issuing of the alias against the terre-tenants, was not an exhibition of due diligence, and therefore entered judgment, non obstante veredicto, for those tenants. This ruling seems to have been founded on the case of the Westmoreland Bank v. Rainey, 1 Watts 26. This case arose under the Act of 1798, and although the scire facias and alias were issued after the passage of the. Act of 1827, the argument is based wholly on the provisions of the previous act. On the first writ there was a return of nihil habet, and the alias was issued five terms after this return; this was held to be too late; that the delay was unreasonable; that the Act of 1798 not only directs the time within which the scire facias shall be issued, but how it shall afterwards be served and upon whom; and in ease the land be unoccupied, and the person or persons on whom it is ordered to be served are not to be found, then proclamation shall be made in open court at two succeeding terms; and in case of either a service of the writ or proclamation, the judgment of revival, unless sufficient cause be shown to prevent the same, must be entered “ at or before the same term subsequent to the issuing of the writ.” It was held, that this was an express limitation of time, within which the judgment of revival must be entered, unless sufficient cause be shown to prevent it. It was on this ground that the alias was held to be too late; that the delay was unreasonable. However applicable this reasoning may have been to the provisions of the Act of 1798, it certainly does not apply to those of 1827; for, as -was shown by Mr. Justice Rogers, In Re Meason’s Estate, 4 Watts 341, and as will also appear by the act itself, the issuing of the scire facias alone, without the entry of judgment, will continue the lien for five years from the date of such issue. And upon the question of what is due diligence, he says: “ The law does not recognise the possibility, when due diligence has been used, that the plaintiff can fail to obtain a judgment of revival within the period of five years; and what is due diligence is indicated by the act, viz., having a judgment of revival-within that time.” But in Silverthorne v. Townsend, 1 Wright 263, Mr. Justice Strong says that this was so under both the acts above mentioned; hence, where a judgment had been entered on the 23d of January 1851, scire facias to revive sued out August 1855, returned nihil as to the defendant, and “served” on the terre-tenant, it was held, that had there been no other scire facias, the lien of the judgment would have been continued five years from the day on which the first writ was issued. When speaking of the alias which was issued to bring in the defendant on the 7th of April 1858, the learned justice says: “ If, then, the alias scire facias, instead of being an abandonment of the first writ, was a prosecution of it, the land was not discharged from the lien of the judgment.”

It may be urged, however, that this case is not in point in that' the terre-tenant who was the one who made defence was served with the writ within the statutory time; but we may observe, from the general principles upon which the opinion is based, that the substitution of the defendant in the original judgment for the terretenant could make no difference, for the ruling was that the issuing of the scire facias within the five years continued the lien, not only as to the tenant who had been served, but also as to the defendant who had not been served. It is, therefore, clear that the substitution of the one for the other could have made no change in the result, since each had the same right to notice. But the case of Davidson v. Thornton, 7 Barr 128, is directly in point, for there the first writ was issued without naming a terre-tenant and returned tarde venit; another scire facias was issued after the five years had expired, and without reference to the first. To this objection was made, that as the terre-tenant was not named in the first writ, and as it was returned without service on him, the subsequent process would not connect him with it, or be carried back by' an alias to the day of its inception. To this it is answered by Gibson, O. J.: “ We must remember, however, that we have to deal with a Statute of Limitations, and that if the originating process issued a single day within the time, it saves the bar, whether the party to be affected have notice of it or not.” He also says further on: “It is the better practice not to name the terre-tenant in the writ, but to direct the sheriff to name him in the return; and the plaintiff having thus proceeded is in no default; consequently, if the officer was remiss in his duty, he alone is responsible for it. But to whom ? Not to the terre-tenant, who is in no worse condition than if he had been served.”

Further than this it is not necessary for us to proceed, for from the decisions above recited, we have seen that the Acts of 1798 and 1827 are statutes of limitations; that if the process issues a single day within the time it saves the bar; that with this process, though not named in it, the terre-tenant may be connected by an alias, and that the time, the reasonable time, within which this may be done, is the statutory period of five years. Nor is there in this any hardship imposed upon the terre-tenant, for buying, as he does, subject to the judgment, by resorting to the dockets, he can always ascertain its exact condition.

Having thus arrived at a conclusion different from that of the court below, we direct that the judgment be reversed, and that a judgment be entered on the verdict for the plaintiff.