Clark v. Digges

Archer, C. J.,

delivered the opinion of this court.

Two reasons are assigned for the motion to quash the scire facias.

1. Because the judgment upon which it issued is an interlocutory judgment, and

2. Because the appellant had no right to prosecute a scire facias.

In answer to the first reason, it may be remarked, that if the judgment was interlocutory, the appellee could avail himself of the objection on a plea of nul tiel record. The motion to quash the writ, in this case, was not an appropriate remedy, The writ of sci. fa. is not defective on its face, but states a good judgment.

But again, it is not an interlocutory judgment. The judgment is for penalty and costs, to be released on payment of-. The amount of the sum to be paid is not stated.

From this entry of the judgment, we think it indicates a judgment, by confession, for the penalty, to be released upon the payment of such sum as might thereafter be agreed upon; and that it is not binding, as a judgment, until the sum shall be ascertained, as originally contemplated. It has been supposed, that the character of the judgment is to be ascertained by the proceedings and docket entries in the original suit. But we think, that we can only look for that purpose to the judgment, as it has been extended by the clerk. Whether it has been properly extended by the clerk, is not for us, in this suit, to determine. Motions for amendment have been made, but they were necessarily made in the original case, and could only be acted upon by us on an appeal taken in that case.

The second reason assigned, is, that the appellant had no right to issue a scire facias in his own name.

The act of 1830, ch. 165, gives the right to equitable assignees of judgments to issue scire facias in their own names, to revive the same without administration being granted on the estate of the legal plaintiff; and it further provides, that in all suits entered for the use of any person, where the legal plaintiff shall die before judgment, the person for whose use the same may be entered, or his representative, shall have power to prosecute the same to judgment as if the legal plaintiff had not died. It has been argued, that as the act has made use of the term equitable assignee in one clause, and cestui que use in another, the rights conferred on an equitable assignee to issue a sci.fa. was not intended to be conferred on the cestui que use; to this proposition we cannot assent. The term equitable assignee is sufficiently comprehensive to include the cestui que use; and the right to prosecute a suit to judgment, on the death of the legal plaintiff, is conferred on the cestui que use, because he is the equitable assignee of the cause of action; and if he may prosecute to judgment in his own name, and in such name have execution, or a scire facias, there is nothing in the reason of the law which would exclude him from having a scire facias on a judgment, where he has prosecuted the suit in the name of the legal plaintiff.

The above observations dispose of the motion to quash the scire facias.

The only remaining question arises on the motion to amend the scire facias, so that it may conform to the judgment, on the supposition, that it was an interlocutory judgment. The judgment of the court below, was, we think, in this respect, right; for as we have before stated, the final entry of the clerk is to he considered, until amended, as the judgment of the court; and as it now stands, it is not an interlocutory judgment.

JUDGMENT REVERSED, AND PROCEDENDO AWARDED.