44 U.S. 57
3 How. 57
11 L.Ed. 491
JAMES, N. AND LEVI DICKSON, PLAINTIFF,
v.
WILLIAM H. WILKINSON, ADMINISTRATOR OF JOHN T.
WILKINSON, DECEASED.
January Term, 1845
THIS case came up from the Circuit Court of the United States for the middle district of Tennessee, upon a certificate of division in opinion between the judges.
All the facts which are necessary to an understanding of the point are stated in the certificate, as follows:——
The plaintiffs, at September term, 1837, with the defendant's consent, had a judgment of assets quando acciderint. On the 2d of October, 1838, upon their suggestion of assets come to the defendant's hands, a scire facias was accorded them to be made known to the defendant to show cause why they should not have execution of those assets. This scire facias was issued on the 10th of January, 1839, and after reciting the judgment quando, it contained the following, and no other, averment of the coming of assets to the defendants's hands:——'And whereas, afterds, to wit, on the 2d day of October, 1838, it was suggested to the said court, on behalf of the said plaintiffs, that goods, chattels, and assets had come to the hands of the defendant, sufficient to satisfy the said judgment; and it was thereupon ordered by said court, that a scire facias issue, and we therefore hereby command you, &c.' This writ was made known to the defendant, and the plaintiffs thereupon, by his default, at September term, 1839, had judgment of execution of the intestate's goods in the defendant's hands to be administered, if so much, and if not, then the costs de bonis propriis. On the 9th of October, 1839, execution was issued accordingly, and returned to March rules, 1840, nulla bona, except as to the costs, which were levied de bonis propriis. A scire facias was now accorded against the defendant to show cause why the plaintiffs should not have execution of their demand de bonis propriis: and this writ was issued, made known to the defendant, and returned to September term, 1840, when he appeared and pleaded to it fully administered, and a special plea, that the insolvency of the intestate's estate has been suggested to the proper Tennessee authority, and a bill in equity filed in a state court to administer his effects according to the laws of Tennessee. To these pleas the plaintiffs demurred, and on the argument of the demurrer, the defendant's counsel, against awarding execution de bonis propriis, showed for cause, that the judgment by default upon the first scire facias did not establish the fact, that any goods, &c., had come to the defendant's hands since the judgment of assets quando acciderint, because the said first scire facias did not aver that goods, &c., had come to the defendant's hands since the said judgment quando, but only that those goods had come to his hands, without saying when, and a judgment by default only admits such facts as are alleged; that unless the record showed that assets had come to his hands since the said judgment quando, and that such assets had been eloigned and wasted, no execution could issue against the defendant to be levied de bonis propriis. And the counsel for the plaintiffs insisted that advantage should have been taken of the alleged defect in the first scire facias as the term to which it was returnable, and returned, by plea or demurrer; that the judgment by default was a waiver of errors in the process, and so that the said error, if it be one, could not be reached by the demurrer aforesaid.
'And upon said point, whether advantage could be taken of the aforesaid defective averment in the first scire facias, upon the plaintiff's demurrer to the defendant's pleas to the second scire facias, the opinions of the judges are opposed.
'And it is thereupon ordered, that the foregoing statement of facts, involving said point, upon which said disagreement occurs, made under the direction of the judges, and at the request of the plaintiffs by their attorney, be certified to the Supreme Court for their opinion upon said point, according to the act of Congress in that case made and provided.'
The case was argued by Mr. Francis Brinley, for the plaintiffs, who made the following points:——
1. The first scire facias was sufficiently accurate as to form. It avers that on the 4th of September, 1837, judgment was rendered for the plaintiffs against the assets quando acciderint. It then avers that afterwards, on the 2d of October, 1838, (more than a year,) the plaintiffs suggested that assets had come into the hands of the defendant, sufficient to satisfy the judgment. These two facts together form the connected proposition, that assets had come into the hands of the defendant since the judgment quando. In the case of Platt v. Robins et al., 1 Johns. (N. Y.), Ch., 276, there is no better averment; yet no objection was taken to the form. 'Diverse goods and chattels which were of the intestate, to the amount of the damages recovered had come to the hands of the defendants,' is the language in that case.
2. If the averment in the first scire facias be imperfect, the objection cannot now be taken; it should have been made by plea, when that writ was returnable. The general rule is, that if a party do not avail himself of the opportunity of pleading matter in bar to the original action, he cannot afterwards plead it, either in another action founded on it, or in a scire facias. Cook v. Jones, 2 Cowp., 727; Wheatley v. Lane, 1 Saund., 216, note 8, by Williams.
3. The defendant cannot plead any plea to the second scire facias which puts his defence upon the want of assets; for such plea would be contrary to what is admitted by his default in the first scire facias. The default is an admission of assets. Treil v. Edwards, 6 Mod., 308; Rock v. Leighton, 1 Salk., 310; Platt v. Robins et al., 1 Johns. (N. Y.), Ca., 276; Skelton v. Hawling, 1 Wils., 258; Ruggles et al. v. Sherman, 14 Johns. (N. Y.), 446; The People v. The Judges of Erie County, 4 Cow. (N. Y.), 446. This last case shows the practice to be to issue execution de bonis propriis, whether nulla bona or devastavit be returned by the sheriff. Iglehart v. Slate, for the use of Mackabin, 2 Gill. & Johns. (Md.), 235; Griffith v. Chew, 8 Serg. & R. (Pa.), 17. A cognovit actionem, by executor, is an admission of assets. Den v. De Hart, 1 Hals. (N. J.), 450.
4. The point raised by the special plea is as to the effect of the proceedings in insolvency in the local courts. If the proceeding be in the nature of a commission of insolvency, then the pendency of such commission is no bar to a scire facias against the administrator, in a judgment had against him. Hatch v. Eustis, 1 Gall., 160.
Mr. Justice McKINLEY delivered the opinion of the court.
This case is brought before this court upon a certificate of division of opinion of the Circuit Court for the middle district of Tennessee.
The plaintiffs had judgment against the defendant for $1169.88 debt, and $110.94 damages. 'And it appearing to the satisfaction of the court, by the admission of the plaintiffs, that no assets of the intestate had come to the hands of the defendant,' it was adjudged, that the plaintiffs have 'execution to be levied of the goods and chattels, and assets, which might thereafter come to the hands of the defendant to be administered.' Upon this judgment a fi. fa. issued to be levied of the assets of the testator, which might thereafter come to the hands of the defendant to be administered: which fi. fa. was returned by the marshal nulla bona. On the 10th day of January, 1839, a scire facias issued against the defendant, upon suggestion that assets of the intestate, sufficient to satisfy the judgment, had come to the hands of the defendant. Upon this scire facias there was judgment against the defendant by default, to be levied of the goods and chattels of the intestate, in his hands to be administered. A fi. fa. issued upon this judgment, which was also returned nulla bona.
And thereupon another scire facias issued against the defendant to have judgment against him de bonis propriis, to which he pleaded, first, plene administravit; secondly, that no assets ever came to his hands; and thirdly, that the estate of the intestate was insolvent at the time the letters of administration were granted; and that in pursuance of the act of the General Assembly in such case made and provided, he had suggested, to the clerk of the county court, the insolvency of said estate, &c. To these pleas the plaintiffs demurred, and in argument the counsel for the defendant insisted 'that the judgment by default upon the first scire facias did not establish the fact, that any goods, &c., had come to the hands of the defendant, since the judgment of assets quando acciderint; because the said first scire facias did not aver, that goods, &c., had come to the defendant's hands since the said judgment quando; but only, that said goods, &c., had come to his hands, without saying when; and a judgment by default only admits such facts as are alleged. That unless the record showed that assets had come to his hands since the judgment quando, and that such assets had been wasted, no execution could issue against the defendant to be levied de bonis propriis.' And the counsel for the plaintiffs insisted 'that the alleged defect, in the first scire facias, should have been taken advantage of at the first term to which it was returnable, by plea or demurrer; that the judgment by default was a waiver of errors in the process; and so the error, if it be one, could not be reached by the demurrer.'
'And upon said point, whether advantage could be taken of the aforesaid defective averment in the first scire facias, upon the plaintiff's demurrer to the defendant's pleas to the second scire facias, the opinions of the judges were opposed.'
A scire facias is an action to which the defendant may plead any legal matter of defence. And in this case the defendant might have pleaded the same matter in bar to the first scire facias, which he offered to plead to the second. Or if he considered the first scire facias insufficient in law, he might have demurred to it. Having done neither, judgment by default was properly taken against him. And it is well settled, that a judgment by default against an executor, or administrator is an admission of assets to the extent charged in the proceeding against him, whether it be by action on the original judgment or by scire facias. Ewing's Executors v. Peters, 3 T. R., 685; The People v. The Judges of Erie, 4 Cow. (N. Y.), 446. Failing to make the money out of the assets of the intestate, on the first scire facias, the plaintiffs prosecuted the second to have judgment against the defendant, to be levied of his own proper goods, &c. To this he pleaded the three pleas before mentioned.
It is a universal rule of law, that if the party fail to plead matter in bar to the original action, and judgment pass against him, that he cannot afterwards plead it in another action founded on that judgment; nor in a scire facias, (see the authorities above cited.) The demurrer of the plaintiffs to the defendant's pleas was, therefore, well taken. And although either party may, on a demurrer, take advantage of any defect or fault in pleading, in the previous proceedings in the suit, the demurrer can reach no further back than the proceeding remain in fieri, and under the control of the court. The judgment on the first scire facias, although ancillary to the original judgment, and the foundation of the proceeding on the second scire facias, was, nevertheless, a final judgment, and, in that count, conclusive upon the parties; and opposed an insuperable bar to any plea of either party, whether of law or of fact, designed to go beyond it.
It is the opinion of this court, therefore, that advantage could not be taken of any defective averment in the first scire facias, upon the demurrer of the plaintiffs to the pleas of the defendant; which is ordered to be certified to said Circuit Court.