Duquesne Nat. Bank of Pittsburgh v. Mills

22 F. 611, 32 Pitts L.J. 213, 1883 U.S. App. LEXIS 2521

• Court: U.S. Circuit Court for the District of Western Pennsylvania
• Decided: September 5, 1883
• Status: Published

Opinion

Aoiieson, J.

1. It was held in McCoy v. Loughery, 11 Phila. 302, (per Ludlow, P. J.,) that if the defendant in a scire facias pay the debt and interest before plea pleaded or demurrer joined, there can be no judgment against the defendant for costs. That seems to be a well-considered case, and .the principle there maintained would defeat the judgment sought in this case, for hore the debt and interest, and all costs save those upon alias fi. fa. No. 19, May term, 1882, were paid before the present proceeding was instituted.

2. The execution against John Nichols, surviving partner, alone, without a previous scire facias to bring in the administrators of Isaa c Mills, Si'., deceased, was, I think, regular as respects Nichols, and it may be conceded that firm property in the hands of Nichols might have been seized and sold on that execution; but, so far as concerns the individual estate of the decedent, the execution was a nullity, (Cadmus v. Jackson, 52 Pa. St. 306,) and it is certain that the costs incurred upon that writ could not have been immediately levied of the decedent’s individual estate. It would seem, therefore, to follow logically that tlie decedent’s estate in the hands of his administrators cannot be reached for those costs through the medium of a scire facias quare execution non. If the plaintiff intended to charge those costs against Mills’individual estate he should, before suing out execution, have brought in the personal representatives, pursuant to section S3 of the act of the twenty-fourth of February, 1834-, (Purd. 425, pl. 101.)

3. The admitted facts fairly established the truth of the second plea. James A. Dick, the equitable plaintiff of record, had, indeed, assigned the judgment to Mr. Weir, his counsel; but the relation of the latter to him justifies the inference (in the absence of any evidence to the contrary) that the assignment was in the interest of Mr. Dick. Now it may have been entirely proper for Mr. Dick to seek to perfect his title in the manner attempted, but it would hardly be just to cast the expenses attending the experiment upon the individual estate of Isaac Mills, Sr., deceased, whose personal representatives had not been forewarned by scire facias.

Upon the whole, 1 am of opinion that the plaintiff is not entitled to judgment against the administrators of Isaac Mills, deceased, for the costs in question. And now, September 5, 1883, it is ordered and adjudged that the plaintiff ought not to have execution of tlie goods and chattels, etc., of Isaac Mills, Sr., deceased, etc., and that judgment be entered for the administrators of said decedent upon their pleas, etc.