121 Pa. 260 | Pa. | 1888
Opinion,
On the 28th August, 1882, Amanda M. Given executed and delivered to Howard R. Kern a bond bearing that date, in the sum of $1,400. A warrant of attorney was annexed to the obligation, under which on 31st August judgment was confessed in the Court of Common Pleas No. 4, of Philadelphia, to No. 606, June Term, 1882. No further proceedings appear to have been taken thereon, until in July or August, 1887, when an attempt was made to revive the judgment, and thereupon this bill was filed. The bill, after stating the circumstances under which the bond was executed, sets forth, that it was delivered by Amanda M. Given, and accepted by Howard R. Kern, solely to secure the release of one George A. Tomlin-son from arrest and imprisonment for the crime of forgery, of which he was guilty; that the bond had no other consideration to support it. The prayer of the bill is, (1) that the bond may be declared illegal and void, (2) that the judgment and the writs of scire facias be stricken off, (3) that Kern be restrained from further proceedings thereon, either for the reviving thereof or by execution, and (4) for further relief. The proceeding is by bill in the equity forms. The court below as a court of equity of course had no power to interfere with the records of the Common Pleas as a court of law, and upon appeal we have no greater power than might have been exercised below. The jurisdiction of the Common Pleas in the entry of the judgment is undoubted, and we cannot strike it off or remove it from the record of that court. The first two prayers of the bill, therefore, we have no power to grant. If a proper case is presented, however, we may enjoin Kern from proceeding to enforce the judgment, but the injunction in such case would not be addressed to, nor would it operate on, the Court of Common Pleas; it would be addressed to him, and would in terms prohibit him from resorting to the legal jurisdiction in which his judgment was obtained for enforcement
The real question for consideration, therefore, is, whether or not, as a court of equity, we ought to enjoin Howard R. Kern from further proceeding on his judgment, by execution or otherwise. It would seem to be settled in Pennsylvania that chancery will grant relief by injunction to stay proceedings, where a judgment is procured by fraud or given upon a consideration which is illegal, or upon a transaction contrary to public policy, or in violation of the law, provided the defendant has had no day in court, and has been guilty of no laches in failing to set up the defence when he had an opportunity to do so. This is the doctrine of Wistar v. McManes, 54 Pa. 318; and that case has.been followed in a number of cases in the Common Pleas: see Cheney v. Wright, 7 Phila. 431; Hetzell v. Bentz, 8 Phila. 261; Leb. Mut. Ins. Co. v. Erb, 16 W. N. 113. To the same effect also is the reasoning of our late brother Trunkey, in Knarr v. Elgren, 19 W. N. 531; see also Barker v. Elkins, 1 Johns. Ch. 466; Henderson v. Hinckley, 17 How. 445; 3 Lead. Cas. in Eq. 194. The jurisdiction in equity in such cases is also assumed in Gordinier’s Appeal, 89 Pa. 528, and in Frauenthal’s Appeal, 100 Pa. 290; in these cases, however, it was held, modifying the rule laid down in Wistar v. McManes, supra, in this respect, that a bill in equity cannot be maintained to restrain execution upon a judgment at law, where a rule to show cause, etc., founded on the same facts, had previously been discharged by the court.
In the case now under consideration, the effect of the demurrer is to admit that the' bond was given in settlement of the criminal charge of forgery of which the son-in-law of the obligor was guilty, and that upon giving the bond the criminal was discharged from arrest and imprisonment. The consideration of the bond was therefore illegal: Bredin’s Appeal, 92 Pa. 245, and in equity the obligation was void. Such agreements have a manifest tendency to subvert public justice, and equity will not permit them to be enforced: 1 Story’s Eq. 294. “ Forgery, or the crimen falsi, is an infamous offence; it is classed with other infamous felonies and misdemeanors,' the
The judgment having been entered by confession upon warrant of attorney, the question of the illegality of the consideration was not considered at the entry of the judgment; the defendant cannot be charged with laches in failing to set up her defence, for she has had no opportunity. We are inclined to the opinion, therefore, that the facts set forth in the bill present such a case as equity would take cognizance of, and that the decree sustaining the demurrer and dismissing the bill must be reversed.
But it was stated at the argument, and it is also set forth in the appellee’s paper book, and we do not understand the fact to be denied, that the complainant here, after her bill was dismissed below, filed her petition in the law side of the Common Pleas, setting forth, substantially, the same facts contained in the bill; that she obtained a rule to show cause, etc., and upon hearing of that rule, the judgment was opened and the defendant admitted to a defence. This fact does not appear in the record, however, and we cannot give it any consideration in the decree. If this be so, however, she needs no equitable relief. The common law court, which at her request has now taken cognizance of the case, has full jurisdiction, under our practice, to consider the matters of defence alleged in the bill. She virtually abandoned the proceeding by bill, in taking the rule and procuring an order in another jurisdiction. The judgment having been opened, the defendant therein has
The decree is reversed, and the record remitted for further proceedings; the appellee to pay the costs of this appeal.
