Wherry v. Wherry

• Decision Date: 04 January 1897
• Docket Number: 59
• Citation: 36 A. 165,179 Pa. 84
• Parties: Mrs. Ida B. Wherry to use of D. L. Rosensteel v. Mrs. Ida B. Wherry, widow and administratrix of T. T. Wherry, deceased, Maggie E. Wherry and Paul Wherry, minor children of T. T. Wherry, deceased, and his heirs, by J. M. Leech, guardian, Appellants
• Court: Pennsylvania Supreme Court

36 A. 165

179 Pa. 84

Mrs. Ida B. Wherry to use of D. L. Rosensteel v. Mrs. Ida B. Wherry, widow and administratrix of T. T. Wherry, deceased, Maggie E. Wherry and Paul Wherry, minor children of T. T. Wherry, deceased, and his heirs, by J. M. Leech, guardian, Appellants

No. 59

Supreme Court of Pennsylvania

January 4, 1897

Argued October 12, 1896

Appeal, No. 59, Oct. T., 1896, by defendants, from judgment of C.P. Armstrong Co., Sept, T., 1893, No. 93, on verdict for plaintiff.Reversed.

Scire facias to revive judgment.Before RAYBURN, P.J.

The facts appear by the opinion of the Supreme Court.

[At the trial defendantscounsel objected to the jury being sworn in the case, Mrs. Ida B. Wherry for use of D. L. Rosensteel, as the name of D. L. Rosensteel is on the record as use plaintiff without authority of law, and also objected to the jury being sworn to Paul Wherry, Maggie Wherry or John M Leech, guardian, for the reason that there had been neither service nor appearance of Paul Wherry, Maggie Wherry or John M. Leech, guardian.

The Court: "We will overrule the motion as to the first part of it in reference to the use plaintiff; and the other part of the motion we will sustain.Let the jury be sworn as to Mrs. Ida B. Wherry, as widow and administratrix of T. T Wherry, deceased, as defendant.We will grant you an exception and sealed bill.]"[1]

The court charged as follows:

[This is an action in the name of Mrs. Ida B. Wherry for use of D. L. Rosensteel against Mrs. Ida B. Wherry, widow and administratrix of T. T. Wherry, deceased.Those are the parties between whom the issue is which you have been sworn to try.

The evidence on the part of the plaintiff in this case is that D. L. Rosensteel had obtained a judgment against Ida B. Wherry as administratrix and widow of T. T. Wherry, she being summoned as garnishee.Ida B. Wherry held a judgment against T. T. Wherry.D. L. Rosensteel held two judgments against Ida B. Wherry; then D. L. Rosensteel issued attachment executions upon these two judgments he had against Ida B. Wherry, and summoned Ida B. Wherry, administratrix and widow of T. T. Wherry, as garnishee; and upon the issue joined in these two attachment executions judgments were obtained.This is a scire facias upon a judgment which Ida B. Wherry held against T. T. Wherry; he being dead, and it being against his estate, she being substituted as administratrix of the estate of T. T. Wherry.

Now, under the evidence submitted before you, gentlemen, the view we have taken of the law in this case is that it would be your duty to return a verdict in favor of the plaintiff and against Ida B. Wherry, administratrix of T. T. Wherry, deceased, in the amount of the judgment with interest from the date of its entry up until the present time.The amount of the judgment as entered was $1,077, and it bears interest from the 17th day of October, 1882, and the interest upon the judgment from that date up until the present time amounts to $831.99, making the total amount of the judgment $1,908.99.It would be your duty under the evidence to return a verdict in favor of the plaintiff, and against Ida B. Wherry, administratrix of T. T. Wherry, deceased, for that amount.]

Verdict and judgment for plaintiff for $1,908.88.Defendants appealed.

Errors assigned among others were (1, 2) above instructions, quoting them.

The judgment is reversed, and the praecipe and all proceedings thereunder are set aside.

W. D. Patton, for appellants.-- It is only in equity that an attaching creditor can claim subrogation to any of the collateral means held by his debtor for securing the debt attached: Corson v. McAfee,44 Pa. 288.

A judgment for an entire sum payable at one time cannot be divided by an assignment of part thereof, so as to entitle the assignee to separate process to revive or enforce payment of the part assigned: Hopkins v. Stockdale,117 Pa. 365.

A writ of scire facias to revive a judgment should follow the original in amount, the date, the names of the parties, and if there is a failure or defect in any of these respects, it is fatal on a plea of nul tiel record: Wood v. Codding,134 Pa. 91;Landon v. Brown,160 Pa. 538;Act ofFebruary 24, 1834, P.L. 77.

M. F. Leason, with him J. W. King, for appellee.-- By operation of law, under the judgments in attachment, the judgment at No. 122, Sept. T., 1883, was appropriated to the use of the appellee, and he was entitled to use it with all its legal incidents in the enforcement of the collection of the debt due him: Fitzsimmons' App., 4 Pa. 248;Reed v. Penrose's Executrix,36 Pa. 214;Ernst's Est., 164 Pa. 87.

The judgment being entered in the lifetime of T. T. Wherry remains, as to lien, indefinite without revival against his heirs and devisees: Shannon v. Newton,132 Pa. 375;Brown's App., 91 Pa. 485;McCahan v. Elliott,103 Pa. 634;Colenburg v. Venter, 173 Pa. 113.

The objection made by appellants to the praecipe and writ is without foundation.The writ warned the administratrix to appear and to show cause why she should not be substituted, and why the judgment should not be revived et quare executionem non: McCabe v. U.S., 4 Watts, 325;Wallace's Admr. v. Holmes, 40 Pa. 427.

Before STERRETT, C.J., GREEN, WILLIAMS, McCOLLUM, MITCHELL, DEAN and FELL, JJ.

OPINION

MR. JUSTICE McCOLLUM:

Ida B Wherry, on the 10th day of July, 1883, obtained a judgment against T. T. Wherry, her husband, who died on the 26th of April, 1884, without having paid the judgment, or any part of it.Letters of administration upon his estate were issued to her, and J. W. Leach was appointed guardian of his minor children.On the 5th of January, 1889, Ida B. Wherry gave her note to D. L. Rosensteel for $318 on which he entered a judgment against her.On the 4th of June, 1890, he obtained another judgment against her for $323.58, and on the same day he issued an attachment execution upon each judgment, and summoned Ida B. Wherry, administratrix of T. T. Wherry, deceased, as garnishee.In each attachment proceeding there was a verdict and judgment against the garnishee for the sum due ...