Wilmer v. Westerman

¹³¹ Urner, J., delivered the opinion of the Court. In effect the hill of complaint in this case alleges that the defendant obtained a magistrate’s judgment against Francis IT. Westerman, who subsequently died without leaving any estate; that the defendant caused, the writ of scire facias to he issued on the judgment, and, without notice to the plaintiff, a judgment of fiat was entered against him, as the personal representative of the deceased judgment debtor, for the sum of $77.08; that the defendant threatened to have execution issued on the judgment and levied on the plaintiff’s individual property; that the plaintiff is not indebted in any capacity to the defendant, and the effort, to enforce the judgment against him personally is a. fraud which he is entitled to have prevented by injunction. Instead of meeting by answer the simple and specific alle^ gation of the bill that the deceased judgment debtor left no¡ assets and that a wrongful effort to enforce it against the plaintiff’s property was impending, the defendant filed a demurrer, which the court below, in the order overruling it, declared to he frivolous and unfounded, and intended for vexation and delay.

Consequently, under General Equity Rule 18, the court ordered that the bill be taken pro confesso and the case proceed ex parte. A petition to strike out this order was filed, hut after a hearing, at which the demurrer also was argued, the petition was dismissed. There Was a second decree pro confesso, passed because of the defendant’s failure to enter an appearance in obedience to the writ of summons. Testimony was taken ex parte in pursuance of that decree.

It- proved that Francis H. Westerman, who was the plaintiff’s father, and against whom the original judgr ment was obtained, died in 1907 without leaving property of any kind; that in 1912, as the plaintiff afterwards learned, the judgment of fiat mentioned in the bill Was rendered against him as his father’s personal representative; that he was never summoned in the scire facias proceeding in which the judgment against him was entered; and that the defend ¹³² ant had endeavored to secure payment of the judgment by the plaintiff under threat of an execution. The final decree enjoined the defendant from proceeding to enforce, against the plaintiff, the judgment in question, and declared it to be a nullity. The appeal disputes the propriety of the decree and of the orders by which it Was preceded. In a former case to which the present appellant was a party (Wilmer v.