Arnold v. Roraback

90 Mass. 429

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1864
• Status: Published

Opinion

Metcalf, J.

The conrt are of opinion that the plaintiffs can

recover, in this action, only §138.18, the amount for which the execution that was issued on the judgment now in suit was returned unsatisfied, and interest thereon, and that the laws of this commonwealth afford them no means of recovering the other sum of §21.50, which they claim. It appears from the case of Langdon v. Langdon, 1 Root, 453, that by the law of Connecticut, where the judgment in suit was rendered, the plaintiffs might have a writ of scire facias thereon, and a new execution for said sum. See also Stoyel v. Cady, 4 Day, 222, and Williams v. Cable, 7 Conn. 119. So by our Gen. Sts. c. 133, § 18, “ if an execution is returned satisfied in whole or in part by the sale of property not liable to such execution, and if damages are recovered against the judgment creditor, or the officer who served the execution, on account of the seizure and sale of the property, the creditor may have a writ of scire facias on his judgment, and shall thereupon be entitled to a new execution for the sum then remaining justly and equitably due to him.” As the creditor, in such case, had no remedy at common law, scire facias is his only remedy. Perry v. Perry, 2 Gray, 326. Andover & Medford Turnpike v. Gould, 6 Mass. 44. But it is manifest that this remedy must be confined to our domestic judgments, and cannot be applied to the present case; for we cannot issue an execution on a judgment of a court of another state or country.

For these reasons, and because legal remedies must be conformed to the law of the forum where they are sought, and, when that law affords no remedy, that forum is powerless, the plaintiffs cannot have judgment for the full amount of their verdict, and these exceptions must be sustained, unless the plaintiffs shall remit $21.50 and the interest thereon, which are included in the verdict. On remitting that amount, they may take judgment for $138.18, and interest on that ‘ sum to the time when the verdict was returned. If the plaintiffs so elect, they may discontinue this suit, or become nonsuit, and resort to a court in Connecticut for the recovery of both tl e aforesaid sums.