Bear v. Patterson , 3 Watts & Serg. 233 ( 1842 )

The opinion of the Court was delivered by

Kennedy, J.

This was a feigned issue, directed by the Court of Common Pleas of Dauphin county, to be formed and tried, for the purpose of determining the rights of the several judgment creditors of John Gamber, to the money arising from a judicial sale of his real estate. The defendants in error, who were the plaintiffs below, although’named as administrators of Arthur Patterson on the record, are in reality the executors, as would seem to have been admitted on the trial. This, however, notwithstanding some question was attempted to be 'made in regard to it, is quite an immaterial circumstance; for whether they be the one or the other, their right to receive the money is the same. There are then only two remaining questions to be decided. The first is, whether the defendants in error, having paid, as executors of Arthur Patterson, their testator the amount of the judgment in favour of Frederick Watts, Esq., against Gamber, given for the amount of two single bills, in which Gamber was bound jointly and severally as si co-obligor with Arthur Patterson, the testator of the defendants in error, are entitled to substitution for the sum so paid by them, or any part thereof. The second question is, if they be entitled to substitution, and thereby gain a preference over the other judgment creditors of Gamber, whether they shall be restricted to $1000, with interest thereon from the 22d day of January 1837, which is the amount of the judgment as entered on a docket in the prothonotary’s office, called the “ lien or judgment docket,” or be entitled to receive $1472.86, according to the amount of the .judgment as entered upon the continuance docket; and found by the jury, under the direction of the court, to be the sum that the defendants are entitled to receive. As to the first question, it is alleged that Arthur Patterson was the surety of Gamber, in the two single bills, upon which the judgment was obtained ; and that the amount of the judgment haying been paid by the defendants out of the assets belonging to the estate of Arthur Patterson, they are therefore entitled to be subrogated to the rights of the plaintiff, in the judgment, for the whole amount of it. But it does not appear from the record, that Patterson was merely the surety of Gamber in the bills; for aught, therefore, that we know, he may have been the principal debtor, and Gamber his surety, or they may have been equally interested in, and alike benefited by the debt; and if the first, no right of subrogation, on the part of the defendants in error, can even be pretended to exist; or if the latter be the case, it could not be claimed with the least colour of equity for more than one-half of the amount of the judgment. If, however, the fact be, that Patterson was the surety only of Gamber in the bonds, it is most probable, that it was so well known to those who were concerned in the trial of the issue, in the court , below, that no question was made about it, and, therefore, no mention of the fact is made on the record. Indeed, it is highly improbable, that a finding in favour of the defendants in error, could have taken place for the whole amount of the judgment, upon any other principle than that of their testator having been the surety of Gamber merely. It will, therefore, be sufficient for us to give our opinion upon this aspect of the case, without passing upon the right of co-obligors to subrogation, who are alike debtors as between themselves. Should it appear, when the case is again brought before the court below for determination, that the testator of the defendants in error was merély the surety of Gamber in the bonds, and that they paid the amount of the judgment before any other creditor of Gamber acquired a lien upon the fund in court, they will be entitled to be subrogated, and thus preferred to the other creditors; but to what amount depends upon the solution of the second question.

Then, in regard to this second question, we think that the defendants in error cannot, consistently with the meaning of the Act of Assembly upon the subject, claim to be subrogated to more than the amount of the judgment as stated in the lien or judgment docket, which is perhaps $150 or $160 less than the true amount, as it appears on the continuance docket. The third section of the Act of Assembly of the 29th of March 1827, makes it the duty of each of the prothonotaries of the several courts of common pleas, district courts, &c., in the state, to prepare and keep a docket, to be called the judgment docket, in which no case shall be entered until after there shall have been judgment, or award of arbitrators in such case, and into which shall be copied the entry of every judgment, and every award of arbitrators, immediately after the same shall have been entered; which entries, so to be made in the said judgment docket, shall be so made that one shall follow the other in the order of time in which the said judgments and awards shall have been rendered, entered, or filed as aforesaid; and the entries, in each case in said judgment docket, shall particularly state and set forth the names of the parties, the term and number .of the case, and the date, and in case the judgment shall be for a sum certain, the amount of the judgment or award; and when any judgment shall be revived by scire facias or otherwise, or when any execution shall issue in any case, a note thereof shall be made in the proper judgment docket, at the place where the other entries in such case may have been made; and whenever any transcript of any testatum execution, or any transcript showing the balance appearing to be due, from any executor, administrator or guardian, or from any collector of any,township, ward or district, shall be delivered to any of the- said prothonotaries, the docket entries made in such case shall be copied into the said judgment docket, in like manner as judgments and awards are herein directed to be copied; and the fee for all the entries made in each case, in the judgment docket, shall be 12J cents, and no more.” Now, it is manifest, from the language of this' section, as also the various provisions contained in it, that the great object of having a judgment docket kept in every prothonotary’s office, in which each judgment should be entered as soon as rendered, or entered, with the amount thereof, if for a sum certain, was to promote the facility and certainty of ascertaining afterwards the amount of the same; so that the prothonotary, or any other person having a right to inspect the records and dockets of the court, should be enabled, by referring to it, to ascertain the amount of any particular judgment that existed, together with everything connected with it, which is required to be entered therein. It may be a matter of interest to subsequent lien creditors of the defendant in the judgment, as well as purchasers of the real estate bound by it, to know the amount of the judgments previously entered; and in order that they might obtain this knowledge, with readiness and certainty, the judgment docket was required to be kept in the office, to which reference might be had for that purpose without looking further. If, then, the judgment be rendered or entered, for a sum certain, it is sufficient to refer to the judgment docket, in order to ascertain the amount, and the amount entered there shall be taken to be the true amount as against subsequent purchasers or lien creditors, whose interests would be prejudiced by enlarging it, though it were only to correct an error of the clerk or prothonotary, committed in transcribing it from the appearance or continuance docket, wherein it was first entered. If the prior lien creditor shall sustain a loss in such case, by reason of the negligence or mistake of the prothonotary, the latter must be responsible for it, and make it good. If, therefore, it shall appear to the court below, upon a second hearing of this case, that Arthur Patterson was merely a surety in the bonds for Gamber, the defendants will have a right to be subrogated to the rights of Mr. Watts, the plaintiff in the judgment, to the amount thereof, as it is entered in the judgment docket; that is, for $1000, with interest thereon from the 22d of January 1837, to the return of the writ under •which the money was made. The court below erred in this particular, by not instructing the jury to confine themselves to this last sum. The judgment is therefore reversed, and a venire de novo awarded.

Judgment reversed, and a venire de novo awarded.