Worman's Appeal

Mr. Justice Paxson

delivered the opinion of the court, May 25th, 1885.

The learned Auditor held that the judgment of Franklin Nice v. William B. Beigel had not been properly revived, and postponed it in the distribution. Upon exceptions filed, the court below reversed this ruling and restored the judgment to its place on the list of liens. From this decision the present appeal was taken.

The revival was by amicable scire facias. It professed to revive a judgment of t$500 entered April 1st, 1874. The term and number were not given. In point of fact there was no judgment of that date between the parties; there w< « a judgment for $500 entered on April 15th, 1874, and it was ’’eged that it was this judgment that was intended to be revived. It is a familiar rule that a seire fa'oias to revive must correctly recite the original judgment: Arrison v. The Com., 1 Watts, 374, The same principle is applicable to a revival by arnicable scire facias. The judgment sought to be revived must be identified. Was it identified in this instance? Not, we think, with any certainty. The term and number were not given. It is true it was between the same parties (with a slight error in the name of the defendant which is cured by the doctrine of idem sonans;) and is for the same amount, but the date of the judgment do. 3 not correspond. There is no judgment of this date of April 1st, 1874. It is said, however, that there was no other judgment between the same parties, and that for this reason no doubt can exist as to what judgment was intended. If this point was regarded of any value, the fact should have been proved before the Auditor and so found by him. For anything we can learn from this record, there may be one or more judgments between these parties for the same amount If so, which of them was intended to be revived ? We cannot assume facts which the parties have not thought of sufficient importance to prove.

But there is another difficulty in the way. The Act of 29th of March, 1827, expressly requires that “ 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 in the place where the other entries in the case may have been made.” It was held in Mellon’s Appeal, 15 Norris, 475, that the failure to note the amicable scire facias on the docket entry of the original judgment is fatal. It is true we held in that case that this defect was cured, because the judgment confessed upon the scire facias was immediately entered in the judgment docket, and as the scire facias correctly recited the original judgment, such entry was constructive notice. Here there was no entry of the agreement to revive upon the record of the judgment of April 15th, 1874, and as that judgment was not correctly recited in the amicable scire facias, there was nothing to connect them, and of course there could be no constructive notice. “ The judgment of revival must point to the original judgment:” Appeal of Fogelsville L. & B. Association, 8 Norris, 293.

The decree is reversed at the costs of the appellee, and it is ordered that distribution be made as reported by the auditor.