240 Pa. 444 | Pa. | 1913
Opinion by
The original judgment in this case, entered upon confession, for the sum of $600, payable in three years, had been suffered to slumber in undisturbed repose for more than thirty years during the life of the judgment debtor, Henry Cole, without any attempt to revive it. Henry Cole died in 1909 seized of certain real estate. He left surviving a widow, and six children by a former wife. The widow became administratrix of the estate. A year after the death of Cole the use plaintiff in the judgment, George I. Cole, a brother of the decedent, who had acquired the judgment by assignment very shortly after its entry, caused a writ of scire facias to issue on the judgment, the administratrix having first been substituted on the record as defendant. To this writ the administratrix appeared, and confessed judgment of revival 20th March, 1911, in the sum of $1,836. In October following the use plaintiff caused to be issued another scire facias to revive the judgment last above entered, with notice to the heirs of Henry Cole. To this writ the administratrix appeared, and again confessed judgment in the sum of $1,856.62, as of November 14, 1911. The proceeding here for review began with a petition of Daniel Cole, son of Henry Cole, the deceased
The order of the court opening the judgment seems to include the original judgment with the judgment of revival. We find nothing in the prayer of the petition asking that the original judgment be opened; nor do we find anything in the evidence that calls for any interference with it. It is not necessary that it should be opened in order to do full justice between these parties. At the time of the judgment debtor’s death, it was more • than thirty years old and unrevived. Such a judgment can sustain no process of any kind except a scire facias. As the judgment stood at the defendant’s death, it was absolutely unenforceable until revived. An action to revive would encounter at once a presumption of payment which would end it, except as that was overcome by proof to the contrary. We modify the order and decree of the court by eliminating from its operation the original judgment, and as so modified, the order and decree are affirmed at costs of appellant.