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OWENS V. HENRY, 161 U. S. 642 (1896)

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U.S. Supreme Court

Owens v. Henry, 161 U.S. 642 (1896)

Owens v. Henry

No. 143

Argued and submitted March 13, 1896

Decided March 30, 1896

161 U.S. 642


In June, 1861, O. recovered judgment in a Pennsylvania court for the recovery of a sum of money against H. and F., both residents of that state. In 1865, H. removed to Louisiana, and became a citizen of that state and chanroblesvirtualawlibrary

Page 161 U. S. 643

continued so until his death. In 1866, the judgment was revived by scire facias, process being served on F. only. In 1871, it was in like manner revived. In 1880, 0. proceeded on the judgment against H. in the courts of Louisiana, where a judgment is barred by prescription in ten years from its rendition. Being compelled to elect upon which judgment he relied, he elected to stand upon the scire facias judgment of 1871. Held that, viewed as a new judgment rendered as in an action of debt, the judgment had no binding force in Louisiana, as H. had not been served with process or voluntarily appeared; and considered as in continuation of the prior action and a revival of the original judgment for purposes of execution, it operated merely to keep in force the local lien, and, for the same reason, it could not be availed of as removing the statutory bar of the lex fori.

June 17, 1861, judgment was entered on a bond and warrant of attorney, dated March 1, 1861, for ten thousand dollars, conditioned for the payment of five thousand dollars on the second day of March, 1861, with interest, in favor of Bernard Owens against John Henry and James Feeny, in the District Court for the County and City of Philadelphia, now the Court of Common Pleas No. 3 for the County of Philadelphia, State of Pennsylvania, and execution was issued thereon that day. February 3, 1866, a scire facias to revive this judgment was issued returnable the first Monday day of March, and served upon Feeny, but returned nihil habet as to John Henry. And a second writ was issued March 19, 1866, and returned nihil. The docket entries show "Ap'l 21, 1866. Judg't for want of an affidavit of defense." But damages were not assessed until March 17, 1871, when they were entered at $6,525. On that day a sci.fa. to revive this latter judgment was issued, returnable the first Monday of April, 1871, and returned nihil, and April 11 an alias was issued returnable the first Monday of May, 1871, with a like return.

May 10, 1871, judgment was rendered "for want of an appearance on two returns of nihil," and damages assessed at $8,482.50. The record shows the assessment was made up of the amount of the prior judgment (assessed March 17, 1871, but treated as of the date of the interlocutory judgment), $6,525; interest from April 21, 1866, $1,957.50, "real debt, $8,482.50."

At the time the original judgment was rendered, John chanroblesvirtualawlibrary

Page 161 U. S. 644

Henry was a citizen of the State of Pennsylvania, but he removed to the State of Louisiana in 1865, and became a citizen of that state, residing there from September 5, 1865, until his death, January 3, 1892.

November 1, 1880, Bernard Owens, who was a citizen of Pennsylvania, filed his petition in the Circuit Court of the United States for the Eastern District of Louisiana against John Henry, as a citizen of Louisiana, setting forth the recovery of judgment against Henry and Feeny June 17, 1861, and the issue of the writs of scire facias, upon which he recovered judgment May 10, 1871, in the sum of $8,482.50, with interest from that date, together with costs, and prayed judgment, with interest and costs. Henry appeared and filed peremptory exceptions to the petition, which exceptions were sustained, and the plaintiff allowed to amend by declaring on which judgment he relied. Thereupon Owens filed his supplemental petition, in which he elected to stand upon the scire facias judgment of May 10, 1871. Defendant again excepted, and also answered that, since September 5, 1865, he had been a citizen and resident of Louisiana, and for and during that time had not been a citizen of Pennsylvania, nor domiciled in said state, nor in any manner represented therein, nor been in any manner, by himself or his property, subject to the laws of the State of Pennsylvania; also pleading nul tiel record and denying that the courts of Pennsylvania ever acquired jurisdiction over him by service or by voluntary appearance.

The case was submitted to the court for trial, a jury being waived, the issues found for defendant, and judgment entered dismissing the suit. While the case was under consideration, Henry died, and it was revived as against his testamentary executor, McCloskey. Thereupon a writ of error was sued out from this Court. chanroblesvirtualawlibrary

Page 161 U. S. 645

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