In dismissing the appellant's bill of complaint and sustaining the cross bills, the supreme court of the District evidently proceeded on the view that it was competent for the circuit court to render judgment of 'fiat executio' on the return of 'Nihil' to two successive writs of scire facias on the original judgment. That a return of two nihils is equivalent to a service has been a rule of practice of long standing in England and in most of the states of this Union.
The writ of scire facias quare executio non is defined to be a writ issued out of the court wherein a judgment has been entered, reciting such judgment, suggesting the grounds requisite to entitle plaintiff to execution, and requiring the defendant to make known the reason, if any there be, why such execution should not issue. Bringham, Ex'ns, 123; 1 Freem. Ex'ns § 81.
'On the return day of the writ the sheriff either returns 'Scire feci' (that is, that he has warned the party), or 'Nihil' (that is, that the party has nothing by which he can warn him). When the sheriff returns 'Nihil,' the party must sue out a second or alias writ of scire facias, and if the sheriff returns 'Nihil' also t the second writ, and the defendant do not appear, there shall be judgment against him. In other words, two returns of 'Nihil' are equivalent to one return of 'Scire feci." Bringham, Ex'ns 124; Andrews v. Harper, 8 Mod. 227; Chambers v. Carson, 2 Whart. 9; Choate v. People, 19 Ill. 63; Kearns v. State, 3 Blackf. 335; Barrow v. Bailey, 5 Fla. 9; Cummings v. Eden, 1 Cow. 70.
And as the supreme court of the District of Columbia has, in the present case, recognized the regularity of the proceedings to revive the judgment against the appellant, no reason is seen why this court should take a different view. Owens v. Henry, 161 U.S. 642, 16 Sup. Ct. 693, is distinguishable from this case, because there the defendant had ceased to be a resident of Pennsylvania, where the original judgment had been entered, years before the writ of scire facias was sued out, and had become a citizen of Louisiana, in which state the statute of limitations had run.
It is urged, on behalf of the appellant, that as Wygant, the original owner of the judgment, had been declared a bankrupt, and as the judgment, as an asset of his estate, had become the property of the assignee in bankruptcy, it was not competent for Grace Wygant, as his executrix, to revive the judgment by proceeding in the supreme court of the District of Columbia. A sufficient answer to this is that Brown, as the judgment debtor, was not injured, and could not have successfully set up that matter by plea to the scire facias. Thatcher v. Rockwell, 105 U.S. 467, was a case where, after suit brought, the plaintiff was adjudged to be a bankrupt, and assignees were appointed, and it was held that the bankruptcy of the plaintiff could not be set up by the defendants to bar its further prosecution in his name, this court saying: 'It is no defense to the debt that the creditor has become a bankrupt; and if an assignee, after notice, permits a pending suit to proceed in the name of the bankrupt for its recovery, he is bound by any judgment that may be rendered. This is a sufficient protection for the debtor.'
In the present case, Leeds, the assignee in bankruptcy, ratified the action of the executrix by making himself a party to the proceedings and procuring a decree compelling her to transfer the judgment to him as an asset of the bankrupt's estate. By that feature of the decree Brown is protected from any danger of being compelled to pay twice.
If, then, the original judgment was regularly obtained, was duly revived by lawful proceedings, and is now made payable, by the decree of the court below, to the party legally entitled to receive the same, no reason is presented by this record why this court should disturb that decree. Equity refuses to relieve from a judgment unless substantial merits are shown.
It is true that the appellant undertook to show that he had a meritorious defense to the suit as originally brought, by certain allegations made in a petition to the supreme court of the District of Columbia filed after the final decree had been entered against him. We are not obliged to notice allegations made at such a late period in the proceedings,-not made, indeed, till the controversy had been finally closed. However, we have read this petition, and it is sufficient to say that it contains nothing which, even if true, and if made to appear during the trial of the present case, would have justified any change in the decree.
The decree of the supreme court of the District of Columbia is affirmed.
Notes edit
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
Public domainPublic domainfalsefalse