176 A. 1 | Pa. | 1934
This is an action of ejectment, but it had its inception in an action in trespass brought in 1925 by the plaintiff, Ola Giles, against William F. Ryan (now deceased) to recover damages for the death of her husband. At that time Ryan owned the real estate, the title to which is now in dispute. The summons in the trespass action, together with plaintiff's statement of claim, was duly served upon Ryan, but no appearance was entered for him. The case was tried, Ryan being neither present nor represented by counsel, and on February 8, 1927, the jury returned a verdict for the plaintiff, upon which judgment was entered a week later. On March 7, 1927, which was within the term, Ryan filed a petition "to open said judgment and set aside the verdict," alleging that his failure to appear at the trial or through counsel was due to the failure of an attorney to represent him whom he thought he had engaged to defend the suit for him, that he had not known of the cause being listed and called for trial, and that he had a good defense which he desired to lay before a jury. After a hearing, the court granted the motion but, in order that the plaintiff might not be "placed in a worse position than before by reason of our interposition," required that certain facts should be considered as averred in plaintiff's statement and that Ryan should pay certain costs of the prior trial. These conditions being agreed to by stipulation of counsel, the court, on January 31, 1928, ordered that "the said judgment is opened and verdict set aside and a new trial granted." Shortly thereafter, on February 27, 1928, Ryan conveyed the real estate in question to Anna McKnight, his mother-in-law, the consideration for the conveyance being $8,000 in cash and the satisfaction of a $10,000 mortgage upon the property which he had given her in 1924. In March, 1928, Mrs. McKnight mortgaged the property to the Potter Title and Mortgage Guarantee Company, which mortgage was later assigned to the Potter Title and Trust Company, intervening defendant. In January, 1929, plaintiff's *67
action in trespass was tried for the second time and plaintiff again obtained a verdict, but the court entered judgment n. o. v. for the defendant. Plaintiff then appealed to this court which reversed the case (
The judgment not being paid, plaintiff caused execution to be issued thereon, and at the sheriff's sale bought the interest of Ryan in the property. Mrs. McKnight refused to surrender possession and this action followed. The Potter Title and Trust Company, as assignee of the mortgage, was permitted to intervene as a party defendant, and Mrs. McKnight having died before the case came on for trial, her executrix and sole devisee, Catherine Ryan, widow of the defendant in the trespass action, was substituted as defendant. The question now is whether the order of the court below opening the judgment, setting aside the verdict and granting a new trial, dissolved the lien of plaintiff's first judgment, for it is conceded that if the lien existed at the time of the conveyance under which defendants claim, plaintiff is entitled to judgment in her favor. The trial judge being of opinion that the granting of a new trial in the trespass action operated as a setting aside of the judgment previously entered, held that the lien of that judgment was dissolved and accordingly gave binding instructions for the defendants. However, after argument upon plaintiff's motion for judgment n. o. v., the court in banc concluded that the trial judge had erred, that the order giving the defendant in the trespass action an opportunity to present his defense was merely an opening and not a setting aside of the judgment previously rendered, and entered judgment n. o. v. for the plaintiff on the ground that the opening of a judgment does not dissolve its lien. Defendants appealed.
The proposition of law upon which the court below acted — that the opening of a judgment to let the defendant *68
into a defense does not destroy its lien — is well settled and cannot be disputed: Breden v. Gilliland,
The judgment is reversed and the record is remanded to the court below with direction to enter judgment for defendants upon the verdict. *70