Carr v. Townsend's Executors

1. A judgment in favor of or against a dead man is not a nullity. 2. In a scire facias on a judgment, the defendant cannot go behind the original judgment. 3. A judgment was entered in favor of C., he at the time being dead: the record imported that he was living, and to allow the contrary to he shown would have impugned the record.

Error to the District Court of Allegheny county: No. 105, to October and November Term 1869. This was a scire facias sur judgment issued to April Term 1862, by Owen S. Coffin and Cornelia Townsend, executors, &c., of Cyrus Townsend, deceased, against Robert Carr. The original judgment was entered March 6th 1862, in the name of Cyrus Townsend against Robert Carr. The defendant pleaded payment with leave, &c. On the trial the defendant gave evidence that at the time of the entry of the original judgment, Cyrus Townsend the plaintiff was dead. They submitted two points, viz.:— 1. The judgment, entered in the name of a dead man, cannot be revived, but the remedy of the executors of C. Townsend is by an action of debt on the bond. 2. That a judgment entered in the name of a dead man is a nullity. The court (Kirkpatrick, J.) refused these points and charged: ■ — “ We instruct you, as a matter of law, that under all the evidence submitted in this case, the plaintiffs are entitled to recover. The amount you will discover from the testimony submitted.” The verdict was for the plaintiffs for $729. On the removal the case to the Supreme Court, the defendants assigned the instructions of the court for error.