Supreme Court of United States.
*514 Mr. J.D. McCleverty, for appellants, submitted on his brief.
Mr. Solicitor General, (with whom was Mr. E.F. Ware on the brief,) for appellees.
MR. JUSTICE BROWN, after stating the case, delivered the opinion of the court.
The question in this case is whether the proceedings by scire facias, taken by the United States to enforce the forfeiture of McElroy's recognizance, operated to divest his title to the lands in dispute.
(1) The argument of the appellants in this connection is *515 that, under Rev. Stat. § 1014, authorizing commissioners "to take bail in any State where he" (the accused) "may be found, and agreeably to the usual mode of process against offenders in such State," proceedings for the enforcement of bail bonds should conform to the practice in the State where the bond is sued; and that, as the statutes of Kansas do not authorize proceedings by scire facias in such cases, but require a formal action, termed in the Code of Kansas a "civil action" against the bail, this practice should also be pursued in the Federal courts; and hence that the judgment of the District Court of Kansas in this case rendered upon a writ of scire facias was illegal and void.
But we do not find it necessary to determine whether a scire facias was a proper remedy or not. It is a sufficient answer to the appellants' contention that the court had jurisdiction of the subject-matter under Rev. Stat. § 563, which confers upon District Courts jurisdiction of all suits for penalties and forfeitures incurred under any law of the United States; and § 716, conferring upon District Courts power to issue writs of scire facias; and also that the court had jurisdiction of the person of the defendant, who was not only served with the writ, but appeared and moved to quash the same, apparently for the same reasons which are now urged for holding the proceedings to be a nullity. If McElroy had desired to contest his liability further he should have prosecuted his writ of error from the Circuit Court, which he appears to have sued out, but subsequently dismissed. The error, if any were committed, did not go to the jurisdiction of the court, but only to the particular remedy pursued, and the action of that court in respect thereto was binding in a collateral proceeding. Hendrick v. Whittemore, 105 Mass. 23.
Nice distinctions were formerly drawn between actions of trespass and case, but it was never supposed that an error in that particular affected the jurisdiction of the court, or could be drawn in question collaterally. Even an objection that an action should have been brought at law instead of in equity may be waived by failure to take advantage of it at the proper time. Wylie v. Coxe, 15 How. 415, 420; Reynes v. Dumont, *516 130 U.S. 354, 395; Clark v. Flint, 22 Pick. 231; Ludlow v. Simond, 2 Caines' Cas. 1, 40, 56.
(2) The objection that McElroy, the judgment debtor, died in August, 1881, after the deed was ordered, but before it was actually executed by the sheriff, and that thereby the judgment became dormant, is equally untenable. It assumes that the general rule that the death of a party to a suit either pending the suit or after judgment and before execution abates the suit, applies to a case where land has been sold upon execution and no deed delivered. It is true that this court held in the case of Ransom v. Williams, 2 Wall. 313, that when a defendant died after judgment, and execution was subsequently issued without the notice required by the statute having been given to the representatives of the defendant, or the judgment revived by scire facias, the execution was a nullity, and all proceedings under it were void. But even in that case a doubt was expressed whether the execution would not be good, if it were tested before the death occurred. The law in such cases, however, acts upon the theory that the defendant is interested in the case, and, therefore, upon his death his personal representatives should be called in. In this case, however, the suit was not only not pending, but the judgment had been satisfied by the sale of the land, and there were no proceedings existing in which McElroy's estate could be said to be interested. The sale was confirmed and deed ordered October 16, 1871, while the death of McElroy took place ten years afterwards. After the property had been sold upon execution, and the United States had bid it in, and the sale was confirmed and the deed ordered, the defendant in the execution received credit for the amount of the sale, which amount, $2467, cancelled the judgment, and left it fully satisfied. There was no judgment to become dormant. In short, the whole proceedings between McElroy and the United States had ceased to exist. The United States stood only in the attitude of a purchaser of the land, with power to call upon the sheriff for a deed. Had the land been bid in by a third party and a deed ordered, it would scarcely be claimed that as to him the suit would have been abated, and yet as a matter of law the position *517 of the United States was precisely the same as would have been that of a third person purchasing the property.
There was no error in the conclusion of the court below, and its decree must, therefore, be
Affirmed.
