Dickson v. Administrator of Wilkinson/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.