Davis v. Davis

• Decision Date: 04 November 1909
• Docket Number: 890.
• Parties: DAVIS v. DAVIS.
• Court: U.S. Court of Appeals — Fourth Circuit

174 F. 786

DAVIS v. DAVIS.

No. 890.

United States Court of Appeals, Fourth Circuit.

November 4, 1909

[Copyrighted Material Omitted]

On the 4th day of December, 1897, a judgment was entered in the court of common pleas (No. 1) of Allegheny county, Pa., in favor of plaintiff in error against defendant in error, upon a confession entered by an attorney for defendant pro hac vice, for the sum of $2,000, with interest thereon from July 19, 1897, costs of suit, and an attorney's fee of 5 per cent., as provided in the judgment note sued upon, with waiver of inquisition, and voluntary condemnation and agreement to sale of any and all property levied on under execution, and waiver of exemption laws. Upon this judgment an execution was issued on December 4, 1897, and levied upon certain goods, which yielded the costs of suit (amounting to $161.75) and $383.40 upon the debt, after payment of certain preferred claims for rent, wages, etc. No further executions were issued upon this judgment, and on October 17, 1906, a scire facias to revive and continue the lien of said judgment was issued to first Monday of November, 1906, upon which the sheriff made return of 'nihil habet.' Thereupon, on the 13th day of November, 1906, an alias sci. fa. was issued to first Monday of December, 1906, upon which a similar return of 'nihil habet' was made by the sheriff, and upon such two successive returns of 'nihil habet' judgment was entered upon the affidavit of the plaintiff for the sum of $2,664.85, on the 26th day of December, 1906.

On February 28, 1907, a summons in debt was sued out of the clerk's office of the Circuit Court of the United States for the Northern District of West Virginia, returnable at March rules, at Wheeling, and was duly served on the defendant and returned on March 2, 1907, and at said rules the plaintiff in error filed in the clerk's office of said court his declaration in debt, reciting the recovery of the said last-mentioned judgment, and filed with his said declaration a bill of particulars, which included a complete exemplification of the record in the Pennsylvania court, from which the facts hereinbefore set forth appear. The declaration recites that the plaintiff is a citizen and resident of the state of Pennsylvania, and that defendant is a citizen of the state of West Virginia and an inhabitant of the Northern district thereof, thus showing the necessary diversity of citizenship to confer jurisdiction, as well as that the amount involved is sufficient for the cognizance of the United States court. At March rules, 1907, a special appearance was entered by the defendant for the sole purpose of moving to set aside and quash the return of service and the writ, which motion was overruled by the court. On September 17, 1907, the defendant craved oyer of the record of the judgment of the court of common pleas No. 1 of Allegheny county, Pa., mentioned in the declaration, and, the same being read to her in open court, demurred to the declaration, and the plaintiff joined issue in demurrer. On October 15, 1907, the court, by order, for reasons set forth in an opinion filed therewith and made a part of the record sustained said demurrer, and, the plaintiff not desiring to amend his declaration, judgment was entered in favor of the defendant, to which the plaintiff sued out this writ of error.

S. L Reed (T. M. Garvin and D. A. McKee, on the brief), for plaintiff in error.

Charles Powell, for defendant in error.

Before PRITCHARD, Circuit Judge, and KELLER and McDOWELL, District judges.

KELLER District Judge (after stating the facts as above).

The plaintiff in error assigns as error the action of the court in sustaining the demurrer to the declaration and rendering judgment in favor of the defendant in error, an in refusing to render judgment in favor of plaintiff for the amount of the judgment entered by the court of common pleas No. 1 of Allegheny county, Pa.

Upon another state of the record it might be necessary for us to discuss some questions which, by reason of the fact that the opinion of the court below is made a part of the record, are rendered unnecessary. From that opinion, copied in full in the record, it appears that the learned trial judge, while emphasizing the doctrine announced in Thompson v. Whiteman, 18 Wall. 457, 21 L.Ed. 897, to the effect that neither the constitutional provision that full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state, nor the act of Congress passed in pursuance thereof, prevent an inquiry into the jurisdiction of the court of another state by which a judgment offered in evidence was rendered, held that there is nothing in the record to show that the Pennsylvania court did not have jurisdiction over the person of the defendant at the time the original judgment was pronounced, and concludes that said original judgment was a valid one. The court further held that although, under West Virginia law (Code 1906, Sec. 3812, c. 124, Sec. 10), 'no judgment shall be rendered on a scire facias, or in any other case, on returns of nihil,' in Pennsylvania, by reason of the act of July 9, 1901 (P.L. 615), of the Legislature of Pennsylvania providing that 'two returns of nihil habet shall be equivalent to personal service, in writs of scire facias to revive judgments entered in personal actions,' two returns of 'nihil habet' would be good as service upon a scire facias to revive a judgment, if said writ were sued out within five years after the rendition of the judgment.

The court below based its judgment sustaining the demurrer upon the theory that, under the laws of Pennsylvania, 'the life of a judgment is five years from the date of its rendition,' and that, consequently, no scire facias can be sued out to revive a judgment after the lapse of five years, because the judgment is then 'dead.' This therefore, is the only question really before us upon the present record, and we will proceed...