Appeal of Campbell

118 Pa. 128 | Pa. | 1888

Opinion,

Mu. Justice Paxson:

This was an appeal from the decree of the court below in the matter of the distribution of the money in the hands of the sheriff arising from the sale of the real estate of James W. Chambers. The appellant was the holder of a judgment against the said Chambers, which he claimed was a lien upon the real estate in controversy, and entitled to be paid out of the fund. The auditor allowed the claim, and decreed distribution accordingly. The learned court below reversed the-auditor upon exceptions filed, and postponed appellant’s judgment and awarded the fund to subsequent lien creditors.

It is admitted that if the appellant’s judgment was a valid hen it is entitled to payment by reason of its priority. The contention of appellees is that it had lost its lien by reason of its not having been properly revived.

The facts briefly stated are as follows:

The original judgment, Robert Campbell v. James W. Chambers, No. 442 Dec. Term 1874, for $2,900, was entered March 4, 1875. On January 12, 1880, a scire facias, No. 54 March Term, 1880, was issued to revive the above judgment, which was duly served. An affidavit of defence was filed bj? Chambers Feb. 16,1880. On June 22,1880, on application of plaintiff’s attorney, a judgment was taken for want of an affidavit of defence for the sum of $1,313.32. The record fails to show how this judgment was taken, whether in open court upon motion, or upon a praecipe for judgment in the usual manlier in the prothonotary’s office.

This judgment was irregular, and, had an application been made in proper time, the court below would doubtless have stricken it off. At the same time the plaintiff would have been entitled to a judgment for want of a sufficent affidavit of defence.

The defendant made no motion to strike off or open the judgment. Another scire facias to revive was issued December 8, 1884, to No. 13 March Term 1885, which was duly served, and judgment entered thereon February 21, 1885, for want of an affidavit of defence for the sum of $1,688.98. On March 7, 1885, a rule was granted to show cause why the judgment No. 54 March Term 1880, and No. 13 March Term 1885, should not be opened, and the defendant let into a defence, which, as to one of the judgments, was subsequently changed to a rule to strike off the same.

Upon this state of facts it hardly needs an argument to show that the learned judge below fell into error when he set aside the judgment of appellant in the distribution. The last revival was regular upon its face, and a judgment was entered thereon. The prior revival was irregular, from the single fact that a judgment had been taken for want of an affidavit of defence when in point of fact an affidavit of defence had been filed.

This, however, is the merest technicality. The plaintiff was entitled to a judgment at the time, as the affidavit was insufficient : Huber v. Commonwealth, 11 W. N. 496. And if he were not, such technicality cannot be taken advantage of after judgment on the second scire facias. That writ warned the defendant to come in and show cause, if any he had, why the judgment should not be again revived. He is precluded now from taking any defence which he might have taken then. In the recent case of Michaelis v. Brawley, 109 Pa. 7, it is held that “ while it is true that the mortgage of a married woman is invalid unless separately acknowledged by her, and the absence of such acknowledgment may be set up as a defence to a recovery upon the mortgage, yet if judgment be recovered on a scire facias issued on such mortgage the judgment is conclusive that the mortgage was properly executed; and the validity thereof cannot be questioned in a collateral action of ejectment.” The only defence to a scire facias to revive a judgment is a denial of its existence or proof of a subsequent satisfaction or discharge: Dowling v. McGregor, 91 Pa. 410. And in such proceeding the merits of the original judgment cannot be inquired into: Ibid.; Cardesa v. Humes, 5 S. & R. 68; Lysle v. Williams, 15 Idem 135; Davidson v. Thornton, 7 Pa. 128; McVeagh v. Little, Idem 279; Stewart v. Colwell, 24 Idem 67. There was no ground laid for either opening or setting aside the judgment.

We are of opinion that the appellant’s judgment was a valid lien upon the real estate of the appellee, yet under the peculiar circumstances of the case we do not think it would be right to award the money directly to him. The amount now due upon the judgment cannot be paid at present. It was given in payment of purchase-money of certain real estate sales by appellant, Campbell, to the appellee. Appellant’s wife refused to join in the deed. One thousand dollars of this judgment was to remain and the principal not to be paid until appellant’s wife should sign the deed, or the title be perfected. This has not been done. We therefore direct the fund to which appellant’s judgment would be entitled, to be impounded and held until such time as the appellant shall make a good title to the premises referred to.

The decree is reversed at the costs of the appellees; and it is ordered that distribution be made in accordance with this opinion.