Wolf v. Pounsford

Ohio Supreme Court
Wolf v. Pounsford, 4 Ohio 363 (Ohio 1829)

Wolf v. Pounsford

Opinion of the Court

By the Court :

1. A scire facias, to revive a judgment, is only a continuation of the formorsuit, and is not an original proceeding. 2 Tidd, 923; 1 Term, 257. When a scire facias is issued to revive a judgment, the whole record is before the court; and if the defendant makes default, and no payments appear *upon the record, it is the duty of the court to award .execution for tho amount of the original judgment. 22 Stat. 68. In the present case, the original judgment was for the sum of two thousand five hundred dollars, and the judgment of revivor for the sum of nine hundred and eighteen dollars and five cents. The writ misrecites the original judgment, and the judgment of revivor follows the writ. This variance appears on the face of the record, and vitiates the judgment of revivor. The original judgment was not revived by the proceedings upon the scire facias, and the record shows no other judgment which could authorize the issuing of the writ of scire Jadas, or the judgment of revivor.

2. Tho original judgment was founded upon a bond, executed by Hubble and the plaintiff in error, as securities for Richey, and conditioned that Richey should make an assignment of his property for tho benefit of his creditors,'under the act of 1805, for the relief of insolvent debtors. It seems, from the record, and particularly from the award of execution in favor of Sanders, *365that Sanders was one of the creditors of Richey at the time the bond was executed; and that the scire facias was issued to enable Sanders to enforce the collection of his claims. It is unnecessary to determine in what manner Sanders might avail himself of the judgment in favor of Pounsford, to secure his debt against Richey. Admitting a scire facias to be the proper remedy, the nature and extent of his claims ought to be set forth in the writ with some degree of certainty. The writ contains no averment that- Richey was at any time indebted to Sanders in any amount, nor does it set forth any facts from which even an inference of such indebtedness can be drawn. Writs of this description must contain everything that is required to constitute a good declaration; or, in other words, they must set out all the facts that are necessary to show a right in the plaintiff to the relief prayed for. 2 Ohio, 248. The award of execution in favor of Sanders is not warranted by any matters contained in the record, and is, consequently, erroneous.

Judgment reversed.

Reference

Full Case Name
Jacob Wolf v. William Pounsford
Status
Published