Sinnickson v. Lynch

Ryerson, J.

The eertioraris in these cases bring up the proceedings of the Camden Pleas under the lien law of 1846(Rev. Stat. 742) and the supplement thereto,-of 1851, (Pamph. L. of 1851, page 187). Claims were filed against Rinnickson, as the owner of certain houses in -Camden, to recover demands against John Whitcraft, the contractor who-erected the houses, for work done and materials furnished for him fin -their -construction. Writs of , seine facias were issued against Sinnickson alone, judg-ments-entered by-default, and executions issued thereon.

The cases are similarly situated, -and.the -following.rea .sons-for reversal were relied on, in each, by the counsel - of ■ Sinnickson.

1. That the scire facias issued against Sinnickson alone, and that Whitcraft, the debtor should have been joined as a defendant.

2. That the sheriff’s return to the scire facias “ duly served,” was not sufficient to authorize the- court to .proceed to judgment.

3. Tha the scire facias was returnable to a day-in term, and that judgment by default was entered at the same term, whereas it was insisted that, being returnable after the first day of the term, the defendant had until the first day of the next term to appear and plead.

4. That the -form- of entering the -ruledor -judgment was not in accordance -with’the established practice in cases of scire facias.

5. -That the umle -for judgment was also illegal in allow;ing ¡interest-upon'the.amount of the-claim filed.and’in allowing costs, there being no‘plea-or -appearance.

The second section of the act of 1846 gives to the creditor the option, after having filed his claim, to “ proceed do recover-it-by personal action, according -to the nature *319 of' the demand, against the debtor, his executors, or administrators, or by scire facias against the debtor and owner or owners of the building, or their executors or administrators.”

It is manifest, from the claim filed, that Whitcraft was the real debtor, although it was insisted, on the argument, that this did not sufficiently appear; and the creditor having elected to proceed by scire facias, he was hound, upon well settled principles, to follow the requirements of the statute, and include the debtor as a defendant. The reason for this requirement is very obvious ; the owner may not know the state of accounts between the contractor and his creditors, nor he able, without the contractor’s aid, to make a proper defence to the action, and .therefore the legislature wisely provided that, in proceeding by scire facias against the owner, the debtor should be joined as a defendant.

Being of opinion that, for this defect in the proceedings, the judgments should he set aside, it is unnecessary to examine the other reasons relied on for reversal.

Let the judgments in these eases be reversed.

Ogden and Haines, Justices, concurred.