34 Pa. Super. 16 | Pa. | 1907
Opinion by
The first question to be considered is, whether a judgment in a proceeding before a justice of the peace or alderman and a sheriff’s jury, under the act of J une 16,1836, P. L. 755, to obtain
Prior to this act there was a conflict of opinion in the courts of common pleas, as shown by the cases referred to by Justice Dean in Smith v. Wehrly, 157 Pa. 407, as to the effect of filing a transcript under the act of 1810. Some courts, following what seemed to be indicated by Justice Rodgers in Hitchcock v. Long, 2 W. & S. 169, held that the transcript when filed became, so far as concerned execution, a judgment of the common pleas and the levy was not restricted to real estate, whilst other courts held differently. Justice Dean, speaking of this condition of the law, said: “ Such was the unsettled
Having regard to the old law and the mischief to be remedied, it would require no straining of the doctrine of this decision to hold that it was not the intention of the legislature to extend the right to file transcripts in the court of common pleas to cases where it did not exist before; in other words, that the right to file the transcript is given and controlled by the act of 1810 and the effect to be given to the transcript, when legally filed, is enlarged by the act of 1885. The words of the latter act are entirely consistent with that view. But, confining our decision to the precise question before us, there are other reasons besides those suggested in the case last cited for holding that the act does not apply to a judgment in a proceeding under the act of 1836. It would be absurd to speak of a judgment of a justice of the peace entered by transcript in the prothonotary’s office, having “ all the force and effect” of a judgment of the common pleas, if no execution could issue upon it out of the common pleas. Whatever else may have been intended by the legislature in the enactment of 1885, we may safely assume, without argument, that the legislature did not intend that any judgment of a justice of the peace thus entered in the common pleas should be in that anomalous condition. It is important, therefore, to notice the nature of the judgment in a proceeding under the act of 1836 and the statutory remedy for enforcing it. The 111th section provides that in case the jury summoned before
Upon deliberate consideration of the question from every standpoint, we are of opinion that the rule to strike off the judgment and dissolve the attachment should have been made absolute. •
The order is reversed and the rule to show cause, referred to in the foregoing opinion, is made absolute, the costs of the appeal to be paid by the appellee.