Kohler v. Luckenbaugh

84 Pa. 258 | Pa. | 1877

Mr. Justice Gordon

delivered the opinion of the court,

It is conceded that the judgment, in this case, was irregularly taken. The writ was issued to the first Monday of July 1874; the narr. was not filed until the 8th of April 1876 ; nevertheless, on the 19th of the same month, without notice to the defendant, judgment was taken against him, in open court, for the want of an appearance. As, on all authority, to entitle himself to such judgment, the plaintiff should have filed his declaration before the return-day of the writ, the court should have made the defendant’s motion to strike off the assessment of damages absolute. It is urged, however, that the defendant has estopped himself from taking advantage of this irregularity by his appearance and defence before the jury of inquiry. Harres v. Commonwealth, 11 Casey 416, and Crosby v. Massey, 1 P. & W. 229, are cited as favoring this view of the case; but in the first of these cases the defendant pleaded his freehold in stay of execution on the irregular judgment, and obtained it; in the second, the defendant neglected, for two terms after he was informed of the judgment, and until after the execution of the writ of inquiry, to make his application for relief. Had Kohler neglected an opportunity, after he was informed of the judgment, of applying for relief, he would have been estopped. For if one would take advantage of a judgment which is merely irregular, he must be prompt in the assertion of his rights, otherwise he will be taken to have waived them. But the defendant in this case seized his very first opportunity to seek redress. The writ of inquiry was issued only eight days after the judgment; it was returned on the 18th of July, and the motion to set it aside was made on the 24th of the same month. As it nowhere appears that he had notice of the judgment until the day of the inquest, it cannot be said that he did not act with sufficient promptitude. Conceding (though there is no record evidence of that fact) that he did appear and defend himself before the jury of inquiry, it amounts to nothing, for it neither delayed the case nor put additional costs thereon. Besides this, the defendant was entitled to a full defence, which he could not have before the inquest. Had the damages been assessed in court, as the Act of 1722 authorizes, the case would have been different; for, having the opportunity to move the court to strike off the judgment, he could not be permitted to take his chances before the inquest, and afterwards, if the verdict did not suit him, be heard on an application to set it aside.

There is no doubt that the practice of directing the writ of inquiry to the sheriff, for the purpose of having damages assessed by a jury to be summoned by him, is orderly and regular, notwithstanding the Act of 1722. That act but gives the plaintiff the power, if he so chooses, to have the court make an order for such assessment; but it does not abrogate the ordinary practice. Indeed, the only doubt which seems ever to have occurred on this subject was whether the act above recited was not obsolete: Wright v. Crane, 13 S. & R. 447.

The judgment and all proceedings under it are reversed and set aside, and a procedendo is awarded.