81 Pa. Super. 306 | Pa. Super. Ct. | 1923
Argued April 26, 1923.
It has been the law in this State for many years that a judgment entered upon a transcript from a justice of the peace cannot be set aside, if regular upon its face, or opened and defendant let into a defense, in the court of common pleas: Lacock v. White,
It was suggested in Lacock v. White, supra, p. 498, that if, as here, the defendant claimed not to have been served with the writ of summons issued by the justice, he had a remedy by certiorari, which directly attacked the validity of the judgment and removed the proceedings for review to an appellate jurisdiction; this being in conformity with the rule laid down therein by Chief Justice BLACK (p. 497), "It may safely be laid down as the rule on this subject, that a judgment rendered by one tribunal cannot be set aside and the cause heard again by another, though a superior one, except in the strict exercise of appellate jurisdiction." But even this suggestion has been negatived by our Supreme Court in Holly v. Travis,
We have examined the record of the justice as contained in the transcript filed in the court of common pleas and agree with the learned judge of the court below that, on its face, it is regular and free of defects. It purports to have been certified when the justice issuing it was in office, differing from Koons v. Headley,
The defendant's rights are protected by the legal requirement that before execution can issue upon the judgment thus obtained in the court of common pleas, he must be warned by scire facias and given an opportunity to show payment or other legal cause, if any, why execution should not issue: Smith v. Wehrly,
The assignments of error are overruled and the order of the court below is affirmed at the costs of the appellant.