Edwards's Appeal

66 Pa. 89 | Pa. | 1870

The opinion of the court was delivered, May 26th 1870, by

Thompson, C. J.

— The auditor had not power to go behind the judgment in the amicable scire facias, in the case of Emeline Lutz v. John Edwards, and declare it void and no lien for want of a stamp or on any other ground of irregularity. To have done so would have been to assume the power to review the action of the court; because, although entered by the prothonotary on the agreement of the parties, it stands nevertheless as to conclusiveness as the judgment of the court. A voidable judgment might be. reversed on error, but-is good until so reversed, and an auditor cannot inquire into it on the ground of irregularity. It is only when void that he may disregard it, because in that case it is incapable of giving or continuing a lien.

This might be sufficient as to the exception to the judgment for want of a stamp on the agreement to revive the judgment, but we also think that the views of the learned judge, and the authorities cited by him, very clearly show that a scire facias to revive a judgment is not within the stamp law. Stamping judicial process is, as the act declares, imposed on “ writs, or other original process by which any suit is commenced.” In our practice the authorities referred to by the learned judge, and others which might be cited, establish beyond a doubt that a scire facias to revive a judgment is not a writ for the commencement of an action. It is but a process to continue the lien 'of the judgment in the original action. It is therefore not on the footing with a scire facias on a mortgage or mechanic’s lien, and the like. They undoubtedly have been regarded in the light of original writs, and consequently may fall within the requisition of the Act of Congress, if indeed Congress may subject the judicial proceedings of the states to stamp duties, a question not presented in this case, nor about which we express any opinion one way or the other. On this ground therefore, as well as on the preceding, the auditor would have transcended his powers and been wrong if he had disregarded the judgment. The agreement was a substitute and the equivalent of a scire facias, Act of March 20th 1827, and if the scire facias, had it issued, did not require any stamp, neither did the agreement for the amicable revival of the judgment.

The judgment was confessed to Mrs. Lutz by Edwards alone. He was the owner of the property bound by the original judgment and on which the mortgage in question rested, and from which the money in court was made. The judgment so confessed was good against him, and sufficient to continue the lien, and nobody else could complain, and he does not. This is too clear for argument ; consequently the learned judge below was entirely right in overruling the auditor, who held a contrary opinion on this point. Seeing no error in the record, the decree of the Common Pleas is affirmed and the appeal dismissed at the costs of the appellants.