DICKSON V. WILKINSON, 44 U. S. 57 (1845)

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U.S. Supreme Court

Dickson v. Wilkinson, 44 U.S. 3 How. 57 57 (1845)

Dickson v. Wilkinson

44 U.S. (3 How.) 57


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

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