Allen v. Krips

119 Pa. 1 | Pa. | 1888

Opinion,

Mr. Justice Paxson.

The only error assigned to this record is the order of the court below striking off the judgment entered on April 26, 1886, for want of an appearance. The said judgment was entered against the widow and heirs of Henry Krips, deceased, upon a scire facias to show cause why a certain judgment recovered against the administratrix of said Henry Krips should not be levied and paid out of the real estate, of which the said Henry Krips died seized.

The record shows that the scire facias to bring in the widow and heirs was issued over thirteen years after the death of the decedent. As the law now stands in this state, in proceedings to charge the real estate of a decedent in the hands of his widow and heirs, the latter must be proceeded against within ten years from the death of such decedent. I will not discuss so plain a proposition, and will refer only to the single case of Hope v. Marshall, 96 Pa. 395, where it was said by our late brother Mercur : “ This was the first proceeding instituted against the widow and heirs with a view of charging a lien on the lands which they had acquired from the decedent. It issued more than ten years after the death of the decedent debtor, and the lien of the debt as against their lands was barred by the lapse of time. The learned judge therefore erred in entering judgment against all the plaintiffs in error. It should have been entered against Hope, the administrator, only.”

It was urged, however, that the judgment was regularly entered, and that it was error to strike it off upon a rule unsupported by an affidavit. It is difficult to see of what possible use an affidavit would have been. All the essential facts appeared of record. The judgment was of course a judgment de terris, and the record showed that the plaintiffs, had no right to it. It was unlawfully and improvidently entered, and we see no error in striking it off. This may always be done where it appears upon the face of the record that a judgment ought not to have been entered. Thus, a judgment entered for want of an affidavit of defence will be strickén off where it appears that the instrument filed was such as not to require an affidavit: Post v. Wallace, 110 Pa. 121; Commonwealth v. Hoffman, 74 Pa. 105. So where the record shows that the judgment was confessed by a feme covert: Dorrance v. Scott, 3 Wh. 309; or by an infant: Knox v. Flack, 22 Pa. 337. The books are full of similar cases which might be cited were it essential. We need not pursue the subject further.

Judgment affirmed.