Owens v. McCloskey

by Melvin Fuller

United States Supreme Court

161 U.S. 642

Owens  v.  McCloskey

June 17, 1861, judgment was entered on a bond and warrant of attorney, dated March 1, 1861, for $10,000, conditioned for the payment of $5,000 on the 2d 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 defence.' 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 11th 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 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 th re 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.

Geo. A. King and W. S. Benedict, for plaintiff in error.

Mr. Chief Justice FULLER, after stating the facts in the foregoing language, delivered the opinion of the court:

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