William Flaccus Oak Leather Co. v. Heasley, 50 Pa. Super. 127

William Flaccus Oak Leather Co. v. Heasley

50 Pa. Super. 127 | Pa. Super. Ct. | 1912

Opinion by

Morrison, J.,

In this action of assumpsit the plaintiff obtained judgment against the defendant on July 12, 1911, for the sum of $245.26 in default of an appearance and affidavit of defense. This judgment is conceded to be regular and valid upon its face. It was duly entered at the proper time after the filing of the plaintiff’s declaration or statement of claim and upon the following return made by the sheriff of Venango county: “And now, June 19, A. D. 1911, served the within summons on M. P. Heasley, the within *130named defendant, by handing to him personally at his place of business in Franklin, Venango county, Penna., a true and attested copy of the within writ, together with a certified copy of plaintiff’s statement of claim and making known to him the contents thereof.” On the same day the judgment was entered a fi. fa. was issued thereon and placed in the sheriff’s hands. ■ On July 24, 1911, a motion was presented to the court at chambers, with notice to plaintiff’s attorneys, to vacate the judgment entered in the above case, and the fi. fa. issued thereon. The motion was based on reasons attached thereto in the form of an affidavit. The learned judge below on the same day filed a written opinion refusing the motion on the ground that the facts alleged in the affidavit attached to the motion do not constitute a sufficient defense to the plaintiff’s claim. In this conclusion of the learned judge we fully concur.

One of the main reasons averred in support of the motion to vacate the judgment was a denial by the defendant that he had ever been served with any summons in the case; that the deponent had no knowledge of the institution of the above suit other than being given a certified copy of what purported to be the plaintiff’s statement of claim. The sheriff’s return, showing that a true and attested copy of the writ of summons was handed to the defendant at his place of business in Franklin, Venango county, Penna., and that he was informed of the contents thereof, is conclusive of the fact of service as between the parties, and such return cannot be contradicted aliunde: Bennethum v. Bowers, 133 Pa. 332; Ben Franklin Coal Co., Ltd., v. Penna. Water Co., 25 Pa. Superior Ct. 628. In Knowles v. Lord, 4 Wharton, 500, the Supreme Court held: “It is a well-settled principle, applicable to every case, that credence is to be given to the sheriff’s return; so much so, that there can be no averment against it in the same action:” Rickard v. Major, 34 Pa. Superior Ct. 107. However, it is not now decided that a denial of service might not have weight along with a meritorious defense *131and motion to open a judgment and let a defendant into a defense.

It is to be observed in the present case that the motion was to vacate the judgment and execution; it was not a motion to open the judgment based upon an affidavit showing a meritorious defense. We can see no distinction between a motion to strike off a judgment and a motion to vacate. The right to have the present judgment vacated or stricken off is ruled against the defendant in North & Co. v. Yorke, 174 Pa. 349. In that case Mr. Chief Justice Sterrett, speaking for the court, said: “No affidavit of defense having been theretofore filed, the judgment thus entered was undoubtedly regular and valid, and plaintiffs were entitled to all the incidents thereof, such as hen, etc., until it was legally reversed or satisfied: Weigley v. Teal, 125 Pa. 498; Newbold v. Pennock, 154 Pa. 591. While the court, for sufficient cause shown, could, under its equitable power, open such a judgment and let the defendant into a defense, it was powerless to strike it from the record, because it was not only regular on its face, but perfectly regular and valid in point of fact. Judgments cannot legally be stricken from the record save for irregularity or illegality: O’Hara v. Baum, 82 Pa. 416; Allen v. Krips, 119 Pa. 1; Breden v. Gilliland, 67 Pa. 34; Adams v. Grey, 154 Pa. 258.”

The case in hand comes strictly within the rules laid down by Mr. Chief Justice Sterrett. If the appellant’s motion had been to open the judgment and let the defendant into a defense the question for consideration would have been whether a good defense had. been sufficiently set forth in the affidavit in support of the motion, and we are clearly of the opinion that the affidavit presented in support of the motion to vacate the judgment and execution was not sufficient to warrant the court in opening it. The affidavit undertook to aver a warranty as to the leather the value" of which the plaintiff was seeking to recover. But in our opinion the affidavit was bad *132under the authority of Gould & Company v. Gage, Hitchcock & Co., 118 Pa. 559.

All of the judges who heard the argument of this appeal reached the conclusion that the appellant failed to present a defense which entitled him to either have the judgment opened or vacated. If the application had entitled the appellant to have had the judgment opened, the plaintiff would have been entitled to have the lien of the judgment and of the execution preserved until the end of the controversy. To have vacated or stricken off a regular and valid judgment and execution would have been a wrong to the plaintiff of which it could justly complain.

The assignments of error are all dismissed and' the decree of the court refusing to vacate the judgment is affirmed.