56 Pa. Super. 101 | Pa. Super. Ct. | 1914
Opinion by
This is an appeal by the defendant from the refusal of the court to set aside a fieri facias issued upon the judgment entered by the common pleas pursuant to the order made by this court on his former appeal: People’s Trust Co. v. Ehrhart, 53 Pa. Superior Ct. 319.' The question as to the appropriate process to be issued
As to the allegation of the defendant’s petition that he was discharged as a bankrupt on December 14, 1901, under proceedings instituted on June 23, 1900, it is sufficient to say that this furnishes no ground for setting aside the fi. fa. This alleged defense has not arisen since the judgment in the common pleas, but, if available at all, was so on the trial. The defendant, not having presented it then, is concluded by the judgment, according to the general rule, that a judgment will be conclusive not only as to matters actually litigated and decided, but as to every ground of recovery and defense that might have been presented and decided: Long v. Lebanon Nat. Bank, 211 Pa. 165.
With regard to the argument that is based on the repeal of secs. 105 to 118, inclusive, of the Act of June 16, 1836, P. L. 755, 780, by the Act of April 20, 1905, P. L. 239, very little need be said. The original judgment was entered by the justice of the peace five years before the passage of the act of 1905, and there is nothing in that act to indicate that the legislature intended the unjust thing of striking down valid judgments previously entered under the act of 1836. True, the scire facias issued and the appeal was taken to the common pleas from the justice’s judgment thereon after the passage of the act of 1905, but not in contravention of any of its provisions or by virtue of the repealed sections of the act of 1836. As pointed out in our former opinion, the jurisdiction of the justice to issue the scire facias, and the jurisdiction of the common pleas to entertain and decide the appeal from his judgment thereon, rests on other grounds, and these were not affected by the act of 1905.
The order is affirmed at the costs of the appellant.