Diese v. Fackler

The opinion of the court was delivered, February 10th 1868, by

Sharswood, J.

It is contended that as Blaess, the defendant in the judgment of Spamer, died subsequently thereto, the execution issued thereon, without a scire facias against his personal representative, was absolutely void (Cadmus v. Jackson, 2 P. F. Smith 295); that no title passed to the purchaser, and that it was not in the power of the executrix to ratify it. _ Though the Act of February 24th 1834, § 33, Pamph. L. 79, literally construed requires a writ of scire facias, we think that it cannot reasonably be doubted that an amicable action of scire facias entered under the provisions of the Act of June 13th 1836, Pamph. L. 578, would be equally available. It was competent for the court, with the consent of the executrix, to have permitted such amicable action to be filed nunc pro tune. Such an order is within the discretionary power of the court, to be exercised in every case with due caution and so as no injury is thereby caused to third persons. The sole object of the law in requiring the personal representatives of the decedent to be warned by writ of scire facias before an execution shall issue, is to give them an opportunity to be heard in order to *112 show cause, 'if any they have, against it. I see no reason why the maxim quilibet potest renunciare juri pro se introducto, shouM not apply. When by writing filed the personal representative agrees, as was done in this case, that the proceedings shall'stand “ as if a writ of scire facias had been duly issued and been duly prosecuted to judgment before the issuing ’of the said writs of execution or either of them,” it is difficult to comprehend why the executions are not rendered valid. No possible injury could be done to any third party. The only person entitled to be made a party and to be heard comes in of her own accord and makes herself such. It is true that there was no order made by the court directing the agreement to be filed nunc pro tune, but their permission to the filing is to be presumed, and the instrument itself by its terms and object indicated that it was to be considered as filed before, and for the purpose of curing the defect in the previous process/ all this was done before the sale on the execution had been consummated by the acknowledgment of the sheriff’s deed to the purchaser, and the proceedings, therefore, were still in fieri. Had the executrix refused to agree to this measure the court would have been bound to set aside the execution, and the purchaser would have been relieved from his bid. He paid his money and accepted his deed on the faith of the record as it stood thus amended. If it was irregular and erroneous it cannot be reversed or set aside in this action. It would push the doctrine of Cadmus v. Jackson to an unwarrantable extreme to hold that the vice of issuing an execution without a scire facias cannot be cured by the voluntary appearance of the personal representative, thus becoming a party to the proceeding before the title of purchaser had become complete. There was in that case no pretence of waiver. The reason of the law is the life of the law and apices juris non sunt jura.

Under this view of the law it is unnecessary to decide whether the defendant Eackler was estopped from denying the plaintiff’s title by appearing before the auditor appointed to distribute the proceeds of the sheriff’s sale, and claiming as assignee of a judgment against Blaess. We think the court below were in error in entering the nonsuit.'

Judgment reversed, and procedendo awarded.