United States v. Houston

• Court: United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
• Citation: 48 F. 207
• Decision Date: 23 November 1891
• Parties: UNITED STATES v. HOUSTON et al.

48 F. 207

UNITED STATES
v.
HOUSTON et al.

United States District Court, D. Kansas, First Division.

November 23, 1891

J. W. Ady, U.S. Dist. Atty.

J. W. McClure, for defendant.

PHILIPS, J.

This is a proceeding to revive a judgment against Mrs. J. F. Streeter, executrix of James Streeter, deceased. It appears from the petition that on the 13th day of October, 1880, the United States, to its own use, recovered judgment in this court on the bond of Samuel D. Houston, James Streeter, and Samuel M. Strickler. Since the rendition of said judgment, to-wit, the 16th day of July, 1886, said James Streeter died, testate, in the state of Kansas, and his will was admitted to probate on the 29th day of July, 1886. The defendant, Mrs. J. F. Streeter, was made the executrix of said estate. She is a resident of [48 F. 208] the first division of the United States district of the state of Kansas. The other defendants in said judgment are now non-residents of the state of Kansas. To this petition for revivor Mrs. J. J. Streeter appears, and moves to quash the motion for various reasons.

It appears that said Houston was a receiver of public moneys of the United States, and that James Streeter and S. M. Strickler were sureties on his official bond; and the judgment in question was rendered against them for breach of the conditions of said bond. The first contention of the defendant is that the United States cannot revive this judgment against one of the defendants thereto without proceeding against all. The common-law rule, it must be conceded, is that, if the judgment sought to re revived was rendered against two or more joint defendants, the scire facias must follow the judgment, and all of the defendants, if living, should be made defendants to the writ; and, where one has died, the writ should be against the survivors and the heirs or personal representatives of the deceased. 1 Black.Judgm.Par. 491. This results from the idea that the legal effect of a judgment on scire facias to revive a judgment, where the judgment remains without process or satisfaction, is to remove the presumption of payment arising from lapse of time, and that it adds nothing to the validity of the judgment, only leaving it as it was when rendered. Ex parte Pile, 9 Ark. 337. It has been held, that 'this would not be so, however, if one of the defendants was dead, or subsequently discharged by bankruptcy, or a feme sole defendant had become covert, and a new party in consequence had been, in a proceeding by sci. fa., introduced upon or taken off the record. ' Greer v. Bank, 10 Ark. 457. And in Hanson v. Jacks, 22 Ala. 549, it is also held that a proceeding to revive the judgment against the representative of the deceased party is the same as an action on the judgment, where the Code of Practice permits a separate action on the judgment against one of the defendants. The statute of Kansas has made radical changes in the old common-law doctrine of contracts and the modes of procedure in civil actions. 'All contracts which by the common law are joint only shall be construed to be joint and several. ' Section 1098, 1 Gen.St. 1889. 'And in the case of the death of one or more joint obligors or promisors the joint contract or debt shall survive against the heirs, executors, and administrators of the deceased obligor or promisor, as well as against the survivors. ' Section 1099. 'In all cases of joint obligations and joint assumptions of copartners or others, suits may be...