Ensign ex rel. Paine v. Kindred

163 Pa. 638 | Pa. | 1894

Opinion by

Mr. Justice Green,

This was an action of assumpsit upon a foreign judgment. The copy of the record annexed to the plaintiffs’ claim discloses that the certificate of the clerk of the court in which the judgment was obtained, was made, not by the clerk but by his deputy, and it is contended this is not a proper certificate. In the case of Lothrop v. Blake, 3 Pa. 488, we held that such a certificate is invalid and will not entitle the record to admission in evidence. Rogers, J., in delivering the opinion said: “ The clerk also, who certifies the record, must be the clerk himself or his successor; the certificate of his under-clerk, in his absence, or of the clerk of any other tribunal, office or body is held incompetent for the purpose. See Sampson v. Overton, Bibb, 409, and Greenleaf’s Evidence, sec. 506, and the authorities there cited.”

As this defect appears on the face of the plaintiffs’ statement and prima facie defeats the record of the foreign judgment as the basis of an action, it follows that the judgment of the court below must be sustained.

Judgment affirmed.

PAINE v. KINDRED.

Opinion by

Mr. Justice Green,.

Oct. 1, 1894:

In this case judgment was refused in the court below on a motion for judgment for want of a sufficient affidavit of defence. Upon the facts set forth in the affidavits a very close case is presented, which is altogether too doubtful in its character to justify us in interfering with the court-below in its action. . In Ætna Ins. Co. v. Confer, 158 Pa. 604, we said: “It must be a very plain case of error in law, if we sustain appeals in such cases as this, from the decree of the common pleas discharging the rule. The decree being interlocutory, no injury can result to the complaining suitor other than delay of final judgment. Besides, it is' doubtful whether the act of assembly authorizing these appeals has not on the whole aggravated delay. The observations of this court in Griffith v. Sitgreaves, 81* Pa. 378, and Radcliffe v. Herbst, 135 Pa. 568, are pointedly applicable in the case before us.”

These remarks are very pertinent in the consideration of the present case. Whether the case will ultimately present a question of accord and satisfaction, or a mere question of a verbal contract for the sale of lands without the payment of any purchase money or taking possession, or making improvements, or of a trust of the title in the defendant at the instance of the plaintiff, may depend upon nice shades of testimony, upon the credibility of witnesses, or upon facts and circumstances which cannot now be foreseen and which may be quite potential in determining the result. Such possibilities are entirely within the scope of the facts set out in the affidavits of defence. We do not mean to interfere, where rules for judgment have been discharged in the lower courts, in doubtful and uncertain' cases, but only in such as are very clear and free of doubt, as we have frequently said.

Judgment affirmed.