I dissent. To constitute a sufficient foundation for a proceeding like this there must be a judgment apparently open and unsatisfied. In response to a summons to show cause why such a judgment should not be made a lien, the defendant may show for cause that although the judgment appears upon its face to be open and unsatisfied, yet, in fact, it has been paid or otherwise extinguished. But when the so-called judgment, which it is attempted to make a lien, shows upon its *547face that it is satisfied, it can no longer be regarded as a judgment, for payment or satisfaction extinguishes a judgment. When, therefore, as in this case, a summons is issued to make an alleged judgment a lien, which bears upon its face an entry of satisfaction — is satisfied of record — there is no foundation for the proceeding, as the very record which the plaintiff brings before the court as a judgment shows upon its face that it is no longer a judgment, but it has been extinguished by satisfaction. The plaintiff shows himself out of court. It seems to me, therefore, that before the plaintiff was entitled to have the so-called judgment in this case made a lien, it was necessary for him, by proper proceedings, to have the entry of satisfaction vacated, so that the record, which he brought before the court as a judgment, asking to have it made a lien, should not bear upon its face the evidence that it was no longer a judgment.
It is true that the Circuit judge says, in his decree, that this proceeding was taken to vacate the entry of satisfaction as well as to renew the execution and make the judgment a lien ■ but this is obviously -a mistake, for, in the agreed statement of facts contained in the “Case,” all that is said is, that it was “a summons to show cause why the said judgment should not be made a lien on the estate of Thomas H. Watts, deceased, and a new execution issued to enforce the same;” and the correctness of this statement is fully borne out by an inspection of a copy of the summons furnished us at the argument here (as it was agreed might be done), from which it appears that the -defendant was not called upon to show cause why the entry of satisfaction should not be vacated. For aught that appears, the respondent below, who is appellant here, may have been taken by surprise when, at the hearing in the Circuit Court, the proceedings in the case of Alsobrook v. Redfearn, which were clearly incompetent as res inter alios aota, were introduced to show that the entry oí satisfaction ought to be vacated.
Judgment affirmed.
A petition was filed for a rehearing of this case, but the court, by its order filed December 8th, 1883, refused the petition, stating that the alleged errors had already been gravely and *548earnestly considered by the court; and, further, that the issue before the court being the right of the plaintiff to revive the execution in the manner proposed, nothing had been adjudged upon the subject of payments and compromises which, in the petition, were alleged to have been made.