Richter v. Cummings

The opinion of the court was delivered,

by Thompson, C. J.

The principle is undeniable that a sci. fa. sur judgment must follow the original judgment in amount, date and parties: Grenell v. Sharp, 4 Wh. 344 , and authorities therein referred to. A failure in this respect is decisive against the admissibility of the record when there is a plea of nul tiel record. The replication habetur tale reeordwm would at once be disproved by a judgment different from that recited in the sci. fa. This was just the difficulty here. The name of John P. Richter, one of the defendants in the original judgment, was omitted in the sci. fa., and, of course, there was a variance between the writ and the judgment sought to be revived. This was most certainly not a mere clerical error, for the defendants in error endeavor to justify the omission, because he was marked as the use-man on the record. But there was no necessity for this. The legal plaintiffs were sufficient to maintain the sci. fa. for the benefit of the party paying the money and entitled to be subrogated. The authorities for this are so numerous that we will not encumber this opinion with them. Had the record been recited as it existed, there would not have been the least difficulty in a recovery, and the court below would have taken care that the execution should be for the use of the party equitably entitled. But it was not so recited, and it was not admissible in evidence, the name of a defendant being omitted.

Is this an amendable error ? We think it is under the Act of 4th May 1852. Certainly J. P. Richter would not object either to an amendment adding his name, or the erasure of his name as the use-man. The query has been whether we ought to consider the amendment as made. It is enough, perhaps, to say that we have not hitherto regarded proceedings as amended which were amendable below, excepting where the error being found has been overlooked or discovered after a trial on the merits. Strictly the error here is formal, but we cannot substitute or add parties, at least unless it were asked for and not resisted. That is not the case here, and we must send the cause back to be proceeded in in accordance to law and practice, there being error in the admission of the record, and in the charge that the plaintiffs were entitled to recover.

We think the admission of Frederick Richter was clearly within the Act of 27th March 1865. He had no personal interest in the case on trial. He was on the record below solely, so far as anything to the contrary appears, in a fiduciary character, viz., as guardian of Martha E. Richter. In this proceeding his position remained the same, so far as the legal parties were concerned, but without the slightest personal interest. It was to change the policy of the law, which forbids parties to the record, although they might not be personally interested, from being witnesses, that *444 the Act of 1865 was passed. It is a remedial act and to be liberally expounded.

Judgment reversed, and venire de novo awarded.