Commonwealth v. Magee
| Decision Date | 09 June 1848 |
| Citation | 8 Pa. 240 |
| Parties | COMMONWEALTH <I>v.</I> MAGEE. |
| Court | Pennsylvania Supreme Court |
Brandebury, for plaintiffs in error, contended: 1st. That the order of the associate judge in vacation, without notice to the plaintiffs, was coram non judice, and afforded the sheriff no protection; that it was the notice alone to parties in interest, that gave vitality to judicial proceedings. He cited Bagly's Practice, 17, 18, 20, 21, found in 15 Law Library. That without notice, the order was no supersedeas: Ib. 35; Hecker v. Jarret, 3 Binn. 411.
2d. That if the order of the judge did suspend the proceeding until the return day, yet the sheriff made himself liable by concealing the order, and neglecting to return it and the fi. fa., until he had levied and sold the defendant's personal property on subsequent executions, and paid out the money. That the plaintiffs' execution was entitled to the money: Beale v. Commonwealth, 7 W. 183-186; Lewis v. Smith, 2 S. & R. 157; Pur. Dig. title Execution, sec. 39; Hutchinson v. Johnson, 1 T. R. 729, and note there cited; Stewart v. Stocker, 13 S. & R. 199; Commonwealth v. McCov, 8 Watts, 154; Myers v. Commonwealth, 2 W. & S. 62.
Reed, contrà.—The order of the judge was a supersedeas to the execution, and a justification to the sheriff. The judge had jurisdiction over the subject-matter, and his decree was final and conclusive. The sheriff had no right to question or disregard it. As to the power of the judge in vacation to make the order, there can be no doubt. By the 13th section of the act of 22d May, 1772, 1 Sm. Laws, 140, the judges of the Courts of Common Pleas are empowered "to minister justice to all persons, and to exercise the jurisdictions and powers, &c., as fully, to all intents and purposes whatsoever, as the justices of the Courts of King's Bench, Common Pleas, and Exchequer, at Westminster, or any of them may or can do." It is said, the authority of a judge at his chambers is the authority of the court itself: 9 Bing. 104; 2 Maule & Sel. 119; 1 Dowl. 274; Bagly's Practice, in 15th Law Lib. 2. Judges at chambers are often called upon ex necessitate rei to set aside irregular judgments signed in vacation; to discharge persons improperly taken in execution: 15 Law Lib. 5; 9 Bing. 104. Such orders may be made without notice, they being deemed the orders of the court; 15 Law Lib. 14. The return in this case rightly made. No breach of sheriff's bond if he did not return his writ sooner: 8 W. 154, 450. He is not bound to return a writ of fieri facias: Bing. on Executions, 251; 13 Law Lib. 106. A sheriff need not return a fieri facias unless called upon to do so: 13 Law Lib. 109. It is the duty of the party to rule the sheriff to return his writ: Watson on Sheriffs, 83; 7 Law Lib. 60. Sheriff not liable to an action at the suit of plaintiff for not returning a writ of fieri facias. A rule to return his writ may be had by order of a judge in vacation: Sewell on Sheriffs, 413; 46 Law Lib. 360. The supersedeas was the act of the judge, not of the sheriff; and a sheriff is never required to show a judgment, or order, to justify under an execution. Bound to execute orders of the court, at his peril: 46 Law Lib. 90.
June 9. BELL, J.
It is true a sheriff must use due diligence to levy and make the money demanded by an execution placed in his hands. What will amount to due diligence must necessarily vary with the circumstances of each case; but it may be safely affirmed that when there are no peculiar reasons known to the sheriff calling for the exertion of unusual energy, and no special request by the plaintiff or his agent for immediate action, a delay such as occurred here before the delivery of the judge's order of the 4th of May, in the absence of collusion or fraud, will not be deemed laches to fix the officer for loss of the debt. Indeed, no fact is suggested on the record tending to show that the lapse of time that intervened between the delivery of the writ and the making of the order, endangered the plaintiff's demand. The execution which eventually swept the goods of the defendant, Ernest, was not issued until long after, and its success was consequent, not on the delay of the sheriff, but incidentally upon the legal effect of the judge's interference.
The inquiry is thus reduced to the single question, whether his order to stay proceedings was obligatory on the sheriff, or a nullity, commanding neither respect nor obedience.
The authority that a judge exercises at chambers in a cause pending, is the authority of the court itself; Doe dem. Prescott v. Roe, 9 Bing. 104; 2 M. & S. 119; 1 Dowl. P. C. 274. And it may be enforced by attachment issued by the court, for the reason that disobedience of a judge's order is a contempt of the court, and punishable as such.
It is said, that, upon any other principle than that of delegated authority, it would be difficult to demonstrate the validity of many of the acts done by judges in cases and under circumstances in which the legislature has not specially invested them with power, in their individual capacities. This species of jurisdiction is exercised ex necessitate rei to prevent injustice and oppression, and to facilitate and direct the interlocutory proceedings of suits at law. It consequently embraces a variety of subjects more or less important to a proper administration of justice. Some of them are of course; and the administration of others calls for the exertion of a sound judgment and discretion. It is properly, therefore, under the control of the court from which the authority is derived, and to which a dissatisfied party is at liberty to appeal. Among the subjects which reasonably fall within the circle of this jurisdiction, the power of staying an execution issued in vacation has been repeatedly recognised and acted on. Such an authority to be exercised by a single judge, is indeed necessary to prevent oppression, and to prohibit the undue sacrifice of property...
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