Sawyer v. Lawrence

40 Me. 256

• Court: Supreme Judicial Court of Maine
• Decided: July 1, 1885
• Status: Published

Opinion

Appleton, J.

The judgment recovered by the plaintiff against the principal debtor in the action in which the defendant on his disclosure was adjudged trustee, was satisfied in part by the sale of goods on execution, for the value of which, the officer levying the same was compelled to respond in damages to their owner. The amount which the officer was thus obliged to pay has been refunded by the plaintiff.

The judgment against the debtor in the original trustee process has never been revived on scire facias, but still remains satisfied in part, that is, to the amount of the goods sold by the officer on execution.

The plaintiff then commenced the present action of scire facias against the defendant, as the trustee of the judgment debtor, claiming to recover against him the entire amount of the original judgment.

It seems to be well settled, that scire facias may be issued to revive a judgment, when the execution thereon has been satisfied in whole or in part, by a sale of goods, or a levy on real estate not belonging to the judgment debtor. Flagg v. Dryden, 1 Pick. 52; Pillsbury v. Smyth, 25 Maine, 427; Wilson v. Greene, 19 Pick. 433. But in such case the debtor is a party to the proceeding and entitled to be heard.

But in scire facias against the trustee, the creditor revives no judgment against the. debtor. The defendant in the trustee process is no party in the process to obtain judgment against the trustee. The amount of the judgment against the debtor is of no moment to the trustee. Before it is revived against the debtor it would be an anomaly to revive it against the trustee.

But this question seems to be settled by the very statute which authorizes the process. It is provided by Revised Statutes, c. 119, § 74, in cases like the present, that “the plaintiff may sue out a writ of scire facias against such trustee from the same Court or before the justice that rendered the judgment, to show cause why judgment and execution should not be awarded against him, and his own goods and estate, for the sum remaining due on .the judgment against the principal defendant.” The sum remaining due is to be ascertained by the judgment, or if the same has been in part satisfied,-by that and the officer’s return on the execution issued thereon. The sum remaining due from the principal defendant, and that for which the trustee is to be charged, is one and the same. The judgment against the debtor is •satisfied in part, and has not been revived by scire facias against him. It cannot be revived indirectly in a suit against ¡the trustee to which he is not a party.

Exceptions overruled.