Opinion
March 29, 1946.
May 27, 1946.
Practice — Execution — Testatum writ of fieri facias — Suggestion of no property in county of judgment — Waiver — Procedure statutorily prescribed — Act of June 16, 1836, P. L. 755.
1. A testatum writ of fieri facias may not be issued where the plaintiff fails to comply with the procedural requirements of section 76 of the Act of June 16, 1836, P. L. 755, as to the prior establishment of the fact that the defendant has no real or personal property in the county where the judgment was obtained. [284-8]
2. The requirement, in the Act of 1836, that the plaintiff file a suggestion, verified by affidavit, that the defendant in the judgment has no real or personal estate in the county where the judgment was obtained, does not create a personal right which the obligor in a bond accompanying a mortgage may waive; it goes to the power of a court to issue a testatum writ. [286-7]
3. Boyer v. Kimber, 2 Miles 393, distinguished. [287-8]
4. A waiver is to be strictly construed and, hence, may not be read so as to relinquish or release rights by implication. [286]
5. Where procedure is statutorily prescribed, it must be pursued strictly. [288]
Before MAXEY, C. J., DREW, LINN, STERN, PATTERSON, STEARNE and JONES, JJ.
Appeal, No. 5, March T., 1946, from order of C. P., Allegheny Co., Oct. T., 1945, No. Fi. Fa. 168, in case of Provident Trust Company, for use of State Workmen's Insurance Fund, now for use of Federal Housing Administration v. Benjamin H. Werner et ux. Order affirmed.
Petition and rule to quash writ of testatum fieri facias.
Rule made absolute, before PATTERSON, SOFFEL and SMART, JJ., opinion by SOFFEL, J. Legal plaintiff appealed.
Harvey A. Miller, for appellant.
Harry I. Glick, with him M. Barney Cohen, for appellees.
Argued March 29, 1946.
The Provident Trust Company, the legal plaintiff and appellant, assigns for error an order by the court below making absolute the defendants' rule to quash a testatum writ of fieri facias which the legal plaintiff had caused to be issued on a judgment in its favor against the defendants in the Court of Common Pleas of Allegheny County. The question involved is whether the appellant complied with the requirements of Sec. 76 of the Act of June 16, 1836, P. L. 755 (12 Pa.C.S.A. § 2631) in respect of the issuance of a testatum writ.
In 1935, the defendants executed and delivered to the Provident Trust Company their joint bond in the just sum of fifteen thousand dollars secured by their Federal Housing Administration mortgage of property situate in Allegheny County. The bond contained a warrant of attorney to confess judgment against the obligors upon their default under the terms of either the bond or mortgage and a waiver and relinquishment by the obligors of "all benefit that may accrue to them by virtue of any and every law, civil or military, made or to be made hereafter exempting the mortgaged premises or any other premises or property whatever, either real or personal, from attachment, levy and sale under execution, or any part of the proceeds arising from any sale thereof." The bond also contained a waiver and relinquishment by the obligors of "all benefits under the Act of Assembly of the Commonwealth of Pennsylvania of January 17, 1934 [P. L. 243], and the operation of all laws now in effect or hereafter passed to relieve the Obligor in any manner from the obligations hereby assumed. . . ."
In 1939, the defendants having defaulted on payments due by them, judgment on the bond was entered against them in Allegheny County by confession. Execution was issued on the judgment pursuant whereto the mortgaged property was levied upon and sold at sheriff's sale for a bid covering taxes and costs. Subsequently a deficiency judgment was liquidated against the defendants. Upon a later revival of the deficiency judgment, a portion thereof was allocated by order of court to the use plaintiff and the balance to the legal plaintiff. The defendants having refused to pay the latter sum, the legal plaintiff caused a testatum writ of fieri facias to issue on its judgment, directing the Sheriff of Franklin County to levy upon and sell personal property of the defendants in that county in satisfaction of the judgment. In causing the writ to issue, the plaintiff did not file a suggestion, verified by affidavit, as required by the Act of 1836, cit. supra, that the defendants in the judgment had "no real or personal estate in the county where [the] judgment [was] obtained". It was because of that omission that the learned court below quashed the writ on the defendants' petition.
The appellant contends that the filing of the specified suggestion was unnecessary in the circumstances (1) because of the defendants' express waiver in their bond of certain statutory benefits in favor of debtors and (2) because the prior writ of execution, whereon the mortgaged property had been sold, failed to make the money sought to be recovered. Neither of these reasons is sufficient to excuse the plaintiff's failure to file the suggestion.
A waiver is to be strictly construed and, hence, may not be read so as to relinquish or release rights by implication: Henry Shenk Company v. Erie, 352 Pa. 481, 487, 43 A.2d 99; Front and Huntingdon Building and Loan Association v. Berzinski, 130 Pa. Super. 297, 302, 196 A. 572. So viewing the waivers in the bond, they effected no more than a relinquishment of the obligors' statutory rights, as debtors, to the exemption of a portion of their property from levy and sale upon an execution issued on a judgment entered on the bond, from stays, etc. In no event could the waivers be considered as dispensing with the prescribed procedural requirement as to the prior establishment of the fact of "no property" essential to the issuance of a testatum writ. That requirement did not create a right personal to the obligors which they were at liberty to waive. It goes to the power of a court to issue a testatum writ and was undoubtedly imposed in order to compel the exhaustion of a judgment debtor's assets in the county of the judgment's entry before resort be had by way of execution on the judgment against property of the debtor situate in another county. The requirement is a reasonable and readily understandable provision for the equal treatment of a debtor's creditors generally without thought of conferring a benefit upon the debtor. The waivers neither could nor were they intended to obviate the filing of the required suggestion.
In support of the second reason that the issuance of the prior execution, whereon the mortgaged property in Allegheny County was sold, rendered the filing of the suggestion unnecessary, the appellant cites and relies upon Boyer v. Kimber, 2 Miles 393 (1840). In that case a judgment creditor issued a writ of fieri facias to which a return of nulla bona was made. Thereafter the judgment creditor, without filing a suggestion as specified by the Act of 1836, caused a testatum writ of fieri facias to issue. On a rule to set aside the writ, the District Court of Philadelphia County discharged the rule and thus sustained the writ, holding that the provision in the Act of 1836 which allows for the issuance of a testatum writ of fieri facias, "without any previous writ", upon the filing of the specified suggestion ". . . refers to cases where a fieri facias has not been issued and returned nulla bona." In justification of the ruling, the learned court reasoned that "Where that writ has been issued and so returned, record evidence is furnished that the defendant has not estate in the county, being evidence of a higher nature than the mere suggestion of the plaintiff. In such a case the old practice obtains, and no suggestion is necessary." (Emphasis supplied).
Even with the Act of 1836 so construed, the facts of the instant case do not present a situation like that in Boyer v. Kimber, supra. Here there was no previous writ of fieri facias which had been returned nulla bona. The only writ, prior to the testatum writ, that had been issued in this case was the writ of execution whereon the mortgaged property in Allegheny County had been levied upon and sold. Consequently, it cannot be said that there was any record evidence furnished by a writ return that the defendants had no property, real or personal, in Allegheny County. A suggestion to such effect, verified by affidavit, was therefore essential to the issuance of the testatum writ. As the procedure is statutorily prescribed, it was necessary that it be pursued strictly. The rule so requiring was legislatively declared in this State at an early date and has been uniformly applied. See Bartron v. Northampton County, 342 Pa. 163, 168, 19 A.2d 263, and cases there cited. Cf. Commonwealth v. Lentz, 353 Pa. 98, 104, 44 A.2d 291.
Act of March 21, 1806, P. L. 558, 4 Sm. L. 326, Sec. 13, 46 P. S. § 156.
The order of the court below is affirmed.