Beck v. Finnefrock

Opinion by

Keller, J.,

The principal question raised by this appeal, is whether when an order or sentence of the court of quarter sessions, has been certified to the court of common pleas, and has been entered and indexed in said court as a judgment, under the provisions of the Act of May 8, 1901, P. L. 148, a writ of fieri facias for the collection of said judgment may be issued within five years from its entry without first issuing a writ of scire facias quare executionem non to revive the same. The learned court below held that it could not and ordered the writ of execution so issued to be stricken from the record and the property levied on thereunder to be released from the lien thereof.

Section one of said act, which authorizes the certification of such order or sentence to the court of common pleas and its entry and indexing therein as a judgment, provides that such judgment shall have like force and effect, as if the same, that is, the judgment just entered in the court of common pleas, had been recovered therein as a judgment of said court; and it follows, that the force and effect thus to be given the judgment in the common pleas is to be of the date of its entry in that court, and not the date when the sentence was pronounced in the quarter sessions.

Section two goes on to enumerate even more definitely the force and effect attaching to the judgment in the court of common pleas obtained by filing therein the certified copy of the order or sentence of the court of quarter sessions. It provides that when said order or sentence is entered as a judgment in the court of common pleas as aforesaid, the said judgment may be revived by scire facias quare executionem non and be collectible by writs of fieri facias, venditioni exponas, etc., to sell real and personal estate, and by alias, pluries, and such other writs of “execution as shall be necessary to collect said judgment, which writs, aforesaid, shall issue in the same manner and be of like force and effect for the sale of personal and real estate as if the judgment had been originally recovered in said court of common pleas.

The act does not provide that the judgment must be revived by scire facias quare executionem non before it may be collected by writ of fieri facias; such a course would not be necessary with respect to a judgment, less than five years old, originally recorded in the court of common pleas, and by the provisions of the act the judgment is to have the same force and effect and the writ of execution on this judgment is to issue in the same manner and with like force and effect as such an original judgment. The section makes provision for two distinct processes, revival and collection, and does not require the former to precede the latter, except after the lapse of five years, any more than is the case with an ordinary judgment recovered in the court of common pleas.

The learned court below, however, ruled that revival of the judgment by writ of scire facias was necessary before collection could be enforcedly writ of fieri facias, because the writ of scire facias is designated in the act, scire facias quare executionem non.

The writ of scire facias, to continue the lien of a judgment against a defendant’s real estate, sometimés known in this State as scire facias post annum.et diem, was instituted by the Acts of April 4, 1798, 3 Sm. L. 331, 2 Purd. 2042, and March 26, 1827, 9 Sm. L. 303, 2 Purd. 2046, and was a different writ from the scire facias quare executionem non, (also indifferently denominated in England, because of the time when it issued, scire facias post annum et diem), authorized by the Statute of Westminster II to revive the judgment in a personal action and the right to issue execution thereon, where the plaintiff had omitted to issue execution within a year and a day, (extended by our Act of April 16,1845, P. L. 538, to five years) : 2 Troubat & Haly’s Practice, Brightly’s Ed., Sec. 2072, note 4. But, probably due to the confusion of names above mentioned, “an inveterate practice has prevailed in this State of reviving a judgment by scire facias quare executionem non, to which the courts on the maxim of communis error, were compelled to give their sanction” : 2 Troubat & Haly Pr. Sec. 2084, citing: Dougherty’s Est., 9 W. & S. 189; Pennock v. Hart, 8 S. & R. 369; Phila. Fire, etc., Co.’s App., 2 Pa. 263; and the practice has been recognized by this court as late as Ramsey v. Ramsey, 15 Pa. Superior Ct. 214.

In this instance, the designation, was, evidently, not used in its exact or technical sense, for so used, there would be no occasion for a revival by scire facias quare executionem non unless more than five years had elapsed from the entry of the judgment: Act of April 16, 1845, supra; and as before pointed out, this refers to the entry of the judgment in the common pleas, not the entry of the sentence in the quarter sessions.

The purpose of the clause in section two, relative to revival by scire facias, was in our opinion, not to emphasize the distinction originally existing between the two kinds of scire facias above referred to, but was to make definite provision that the lien and effect of such a judgment, was, like other judgments, limited to five years, but like them, might be revived and continued by scire facias, and in expressing this purpose, the legislature fell into the common practice and common error above referred to, by using the designation, “quare executionem non.” It could not have had in mind the Statute of 8 & 9 William III, Cap. NI, Roberts’ Digest, p. 142, as suggested by the learned counsel for the appellee, for that applied only to an action on a bond in a penal sum and authorized judgment to be entered for the penalty of the bond and damages assessed to the time of trial, with the right to issue scire facias to show cause why execution should not be had or awarded on said judgment for further breaches of said bond, for there is no bond or recognizance involved in the act.

The Act of May 8,1901, was considered by this court in Commonwealth, .to use' of Fronk v. Rarick, 66 Pa. Superior Ct. 162, where it was held that a judgment entered, pursuant to its provisions, in the court of common pleas carries with it inherently all necessary process to enforce its payment, including attachment execution.

No rights of a defendant are jeopardized by the construction herein adopted, for the order or sentence of the court of quarter sessions, before entry in the common pleas, is like a judgment in the common pleas, subject to the presumption of payment after twenty years, and if the order or sentence has actually been complied with and the money due thereunder paid, or if any error has been made in the amount of the judgment, the facts can be shown on a petition to open the judgment.

The second assignment of error is sustained.

In view of this action it is not necessary in this appeal to consider the Act of June 7,1907, P. L. 429, and whether its effect is retrospective or not.

The order of the court below is reversed, the writ of fieri facias is reinstated, and the record remitted that a writ of venditioni exponas may issue to sell the property levied on thereunder.