Bowie v. Neale

• Decision Date: 01 July 1874
• Citation: 41 Md. 124
• Parties: MELVINA H. BOWIE, Terre-Tenant of JAMES S. MORSELL v. FRANCIS NEALE, and JAMES H. LUCKETT use of WILLIAM N. DORSETT.
• Court: Maryland Court of Appeals

41 Md. 124

MELVINA H. BOWIE, Terre-Tenant of JAMES S. MORSELL v. FRANCIS NEALE, and JAMES H. LUCKETT use of WILLIAM N. DORSETT.

Court of Appeals of Maryland

July 1, 1874

APPEAL from the Circuit Court for Prince George's County.

A writ of scire facias was issued at the instance of Francis Neale and James H. Luckett, on a judgment recovered by them against James S. Morsell and William N. Dorsett, the writ contained a clause of scire facias against the terre-tenants of the defendants, but not against the defendants themselves. This writ was returned " scire feci Dorsett, not served on Morsell."

A second writ was then issued, the nature of which together with the proceedings had thereon are sufficiently stated in the opinion of the Court.

The appellees moved to dismiss the appeal, because of the record not having been transmitted within the time prescribed by the rule in such cases made and provided.

The cause was argued before BARTOL, C.J., BOWIE, GRASON, MILLER ALVEY and ROBINSON, J.

Daniel Clarke, for the appellant.

The Court below erred in rendering judgment for the plaintiffs in the demurrer to the writ of scire facias. The writ of scire facias, to which the demurrer applied, was the writ issued on the 21st of May, 1866. This writ recited that the judgment was recovered against James S. Morsell and William N. Dorsett.

The writ issues upon a judgment against two defendants and proceeds against the terre-tenants of only one of the defendants. Under the previous writ, which issued on the first of January, 1866, the return had been scire feci only as to Dorsett. It did not show that any process had been served upon his terre-tenants.

In the case of Prather vs. Manro, 11 G. & J., 261, it is held that where the writ of scire facias stated that the judgments upon which it was issued, was rendered against two defendants, and proceeded upon that statement of facts against the terre-tenants of one only, without the suggestion of the death of the other, the parties proceeded against may take advantage of the defect by general demurrer.

See also Foster's Writ of Scire Facias, 73 Law Library, 20 and 21, (marginal) notes. Panton vs Hall, 2 Salk., 598.

A scire facias is in the nature of a declaration, to which the defendant has the right to plead. Prather vs. Manro, 11 G. & J., 261; Evans' Practice, 204; Foster's Writ of Scire Facias, 73 Law Library, 349 ( marginal.)

The writ commands the sheriff to give notice "to the terre-tenants in his bailiwick, whereof the said James S Morsell, on the 7th day of November, 1853, (on which day the said judgment was rendered) or ever afterwards was seized," instead of commanding him to give notice to the terre-tenants of all the lands and tenements in his bailiwick, whereof the said James S. Morsell, on the 7th day of November, 1853, (on which day the said judgment was rendered,) or ever afterwards was seized.

For proper form of writ, see 2 Harris' Entries, 763. This might have been amended, but the plaintiffs elected to stand upon the writ without amending the same.

The terre-tenant is entitled to deny the seizin of the defendants to the original judgment of the land and tenements of which she is terre-tenant. Webster vs. Saunders, Terre-Tenant, 4 Har. & Johns., 287; Ford vs. Gwin, Admr., 3 Har. & Johns., 496.

How can this be done if the writ does not allege that James S. Morsell was seized of the lands of which the defendant is terre-tenant? If a declaration is so defective as not to allege a material fact in such form as to enable the defendant to deny the same by plea, it would be bad upon demurrer. The same principle or rule should apply to the writ of scire facias, which is in the nature of a declaration.

Neither one of the writs contains any clause of scire facias against either of the defendants in the original judgment. Prather vs. Manro, 11 Gill & Johns., 266.

William H. Tuck, for the appellees.

There is no force in the objection, that the writs reciting a judgment against the two, states that Morsell alone was convict thereof, &c. The old forms contain such expressions, but has it ever been decided that a writ of scire facias otherwise good, was bad on account of omission? The writ states the judgment in all essential particulars, naming the amount, the Court, &c., which certified to the Court in which it was pending that the Court by which the judgment is alleged to have been rendered, had jurisdiction of the subject-matter.

It also alleges, that execution remains to be had, which shows that Morsell was convict of the subject-matter of the controversy, and that he had not discharged himself by any satisfaction of the judgment. What more was needed to inform Morsell or his terre-tenants, that there was an unsatisfied judgment binding the lands sought to be affected? There is no magic in the expression, "convict, as appears of record," except to set men to wondering how the word convict--generally employed in a criminal sense--could be reasonably applied to the recovery of a debt. But aside from this. We are told that a sci. fa. performs the office of a declaration--that is, it is the pleading on which the case is to be prosecuted and defended. Is there any reason why the liberal rules applied to other pleadings should not be observed as to this? If the Court can see that the writ contains substantially all the recitals and averments necessary to put the parties on their defence, the present rules of pleading are gratified.

It is also objected, that the writ recites a judgment obtained against two, but proceeds only against the terretenants of one. This is the only proper course of proceeding, where, as here, the other defendant had been warned by a former writ against both. It might as well be insisted, that where a summons is issued against two, and one summoned, the alias summons must be renewed against both; cui bono? It makes no difference that the previous writ had been served on the terre-tenants of Dorsett. Perhaps he had none. If he had, it was the subject of a plea in abatement, and not cause of demurrer to the writ. To such a plea, also, the plaintiff might have replied, the pending suit against Dorsett and his terre-tenants, if any had been summoned, or that none had been summoned, because, for instance, Dorsett had no lands of which any one could have been summoned as tenant, or was in possession himself.

The reason for bringing in all the tenants, is to enable them to enforce contribution inter se se; and where the case shows, or can, by proper pleadings on the part of defendant, be so conducted by plaintiff as to show that all necessary persons have been proceeded against, and may be held for contribution, the purposes of justice will be answered; for there may be as many cases docketed as there are terre-tenants; if one has to pay the judgment, he may go against the others, no matter whether they are all summoned to the same or at different terms of the Court.

In Prather vs. Manro, 11 G. & J., 261, the first and only writ issued, omitted one of the defendants, whereas, here, the other defendant was already in Court under a previous writ, to which Morsell also had been a party defendant. The facts are different, and the case quoted,--is not an authority against the appellees.

The object of process and pleading is to put parties upon notice, and this was fully accomplished as to Morsell and his terre-tenants by the form of the present writ, which could have been placed in no other form, without making Dorsett and his terre-tenants defendants in two cases for one debt. It was apparent by the record, that this was a renewal of former process, and that all proper parties had been summoned and brought into Court. Hence, the appellant had no ground of complaint for the alleged omission now under consideration.

The second objection to the writ is that it does not require the sheriff to give notice "to the terre-tenants of all the lands and tenements in his bailiwick, whereof the said Morsell was seized, &c." This is just what the writ does command the sheriff to do when he is told to give notice "to the terre-tenants in his bailiwick," &c., &c. for a terre-tenant is a tenant of land, and the meaning of the language employed is to notify the tenants of the land in his bailiwick, whereof (that is the lands, not the tenants) Morsell, on the day, &c., or ever afterwards, was seized, &c.

The plaintiff ought not to lose his case for not following the precise language of the old forms, if words of equivalent import are used. The writ is correct in not saying "terre-tenants of all the lands, &c." for the word "terretenants" means all that is necessary to aver, and does enable the parties summoned as tenants to deny the seizin, &c. Bank of U.S. vs. Lyle, 10 G. & J., 326.

The third objection to the writ, viz: that it does not contain a clause of sci. fa. against the defendants is of no consequence, since Dorsett had been notified under the second writ, and Morsell and the appellant, as his terretenant, had appeared to the third, and filed pleas accordingly. The reason for making the original defendant a party to the sci. fa. is, because he is the person best competent to shew satisfaction, &c. Prather vs. Manro, 11 G. & J., 266.

The terre-tenants aree ntitled to his assistance in defending the sci. fa. If he comes in voluntarily, is not the purpose gratified? It is conceded that the writ of sci fa. may be amended. Suppose such a motion had been made by the plaintiff, would not the Court have said there is no necessity for that, since the defendant in the judgment and his terre-tenant are both in Court of their own accord? Amendments are allowed when the ends of justice require; but if the Court can see, from the whole case, that they are...