There was a judgment against an administrator of assets
quando acciderint.
Upon this judgment a
scire fascias was issued
containing an averment that goods, chattels, and assets had come to
the hands of the defendant.
Upon this
scire fascias there was a judgment by
default; execution was issued, and returned
nulla
bona.
A
scire facias was then accorded against the
administrator to show cause why the plaintiffs should not have
execution
"de bonis propriis."
It was then too late to plead that the averment in the first
scire facias did not state that assets had come into the
hands of the administrator subsequent to the judgment
quando.
A judgment by default against an executor or administrator is an
admission of assets to the extent charged in the proceeding against
him.
Page 44 U. S. 58
If a party fail to plead matter in bar to the original action
and judgment pass against him, he cannot afterwards plead it in
another action founded on that judgment, nor in a
scire
facias.
A demurrer reaches no further back than the proceedings remain
in fieri or under control of the court.
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 2
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
10 January, 1839, and after reciting the judgment
quando
it contained the following, and no other, averment of the coming of
assets to the defendants' hands:
"And whereas, afterwards, to-wit, on 2 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 9 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;
Page 44 U. S. 59
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
its opinion upon said point according to the act of Congress in
that case made and provided. "
Page 44 U. S. 60
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 $1,169.88
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 10 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
Page 44 U. S. 61
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 defense. 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;
People v. Judges of Erie, 4 Cow. 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,
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."
