Dunn v. Dilks
| Decision Date | 24 November 1903 |
| Docket Number | 4,683 |
| Parties | DUNN ET AL., EXECUTORS, v. DILKS, EXECUTRIX |
| Court | Indiana Appellate Court |
From Marion Circuit Court (10,452); H. C. Allen, Judge.
Action by R. W. Dunn and others, executors of the estate of John S McCray, deceased, against Eleanora Dilks, executrix of the will of John H. Dilks, deceased. From a judgment in favor of defendant, plaintiffs appeal.
Affirmed.
A. C Ayres, A. Q. Jones, J. E. Hollett, J. H. Osmer, A. R. Osmer N. F. Osmer and G. W. Blain, for appellants.
F. E. Gavin, T. P. Davis and J. L. Gavin, for appellee.
A demurrer for want of sufficient facts was sustained to appellants' amended complaint, and, they refusing to plead over, judgment was rendered against them for costs. Sustaining the demurrer to the amended complaint is assigned as error.
The complaint, together with the exhibits and exemplifications, is voluminous, but the facts as stated in the complaint upon which the decision must rest may properly be stated in few words. On August 11, 1871, the deceased, John H. Dilks, and Robert Sutton executed their joint note, payable to James S. McCray, now deceased, due ninety days after date, for $ 1,025. This note contained the following clause: "And we empower any attorney of record in this commonwealth, or elsewhere, to appear for us and confess judgment against us for the above sum, together with the ten per cent. additional, with cost of suit, release of errors, and without stay of execution."
The note shows on its face that it was executed in the commonwealth of Pennsylvania. At the time of the execution of said note there was, and ever since has been, in force in the commonwealth of Pennsylvania the following statute: "It shall be the duty of the prothonotary of any court of record within this commonwealth on the application of any person being the original holder, or assignee of such holder, of a note, bond or other instrument of writing in which judgment is confessed, or containing a warrant for an attorney of law or other person, to confess judgment, to enter judgment against the person or persons who executed the same, for the amount which, from the face of the instrument, may appear to be due, without the agency of an attorney, a declaration filed with such stay of execution as may be therein mentioned for the fee of $ 1, to be paid by the defendant party entering in his docket the date and tenor of the instrument of writing on which the judgment may be filed, which shall have the same force and effect as if the declaration had been filed, and judgment been confessed by an attorney or judgment been obtained in open court, and in term time."
The note referred to was not paid at maturity, and on the 20th day of August, 1872, the holder of the note presented it to a prothonotary of the court of common pleas of Crawford county, in the commonwealth of Pennsylvania, and such prothonotary entered judgment thereon against the makers. On the 11th day of October, 1876, the judgment so entered had not been satisfied, and on that date it was transferred to the court of common pleas of Venango county in said state, in accordance with the statute then in force, which statute is as follows:
On the 11th of August, 1871, there was in force in the commonwealth of Pennsylvania, and ever since has been, the following statute: "Upon all judgments already entered, or which may be hereafter entered in any court of record within this commonwealth, it shall be lawful to sue out a writ of scire facias to revive the same according to the provisions of this act, and the act of which this act is a supplement, or to revive the same by agreement of the parties filed and docketed as aforesaid, notwithstanding the day of the payment of the money for which such judgment may be rendered, or any part thereof, may not have arrived at the time of suing out such writ of scire facias, or the revival of such judgment by agreement, as aforesaid, and notwithstanding any other condition or contingency may be attached to such judgment or any execution may have been issued to such judgment; and moreover, no order or rule of court, or any other process or proceeding thereof, shall have the effect of obviating the necessity of the revival, in manner herein prescribed, of any judgment whatever."
On March 7, 1882, in accordance with the provisions of the statute last cited, a writ of scire facias was issued by the prothonotary of the court of common pleas of Venango county, Pennsylvania, to revive said judgment and placed in the hands of the sheriff of said county for service. Said scire facias writ was returned, indorsed by the sheriff that the defendants could not be found. Thereupon, and in accordance with the statute then in force in said state, proclamation was made by the court crier of said court, calling upon all persons interested to show cause why such judgment should not be revived. The statute to which reference was last made is as follows:
At the time said scire facias writ was returned indorsed "Not found" as to the defendants, nor at any time since, has anyone interposed any objection to the revival of said judgment.
May 2, 1883, a second scire facias writ was issued for the revival of said judgment, which was also returned "Not found" as to the defendants. Proclamation was again made by the court crier, and no one appeared, nor has since appeared, and interposed any objection to the revival of the judgment. September 10, 1883, judgment was entered and liquidated in said court of common pleas against the makers of said note in the sum of $ 1,763. May 31, 1899, James S. McCray, the original payee of said note, died, and the appellants were appointed executors of his estate, and on May 31, 1899, such executors had another scire facias writ issued to revive said judgment, and said writ was returned "Not found" as to said defendants, and upon such return the court crier made proclamation in court, as required by statute. On August 1, 1899, an alias scire facias writ was issued to revive said judgment, placed in the hands of the sheriff for service, and was also returned "Not found." Proclamation was made in like manner, and no one at that time, or since, interposed any objection to the revival of said judgment. And on April 3, 1900, judgment was entered and liquidated against the defendants in said court of common pleas in the sum of $ 3,499.53. At the time of the execution of the original note both of the makers were residents of, and domiciled in, the commonwealth of Pennsylvania. It is observable that this proceeding is not based upon the original note, nor the original judgment as entered by the prothonotary, for the principle is well defined that the note was merged into the original judgment, and that that judgment was merged into the succeeding one, and so on until the judgment last entered on April 3, 1900, and that is the basis of this action.
Some technical objections are made to the complaint, but from the view of the law which we have taken, we deem it unnecessary even to refer to such technical objections, and shall determine the rights of the parties upon their merits. It is the theory of appellants, as disclosed by their brief...
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