Sellers v. Burk , 1864 Pa. LEXIS 106 ( 1864 )

The opinion of the court was delivered, by

Read, J.

The question in this case is, whether the judgment for want of a plea in Howland v. The Merchants’ Insurance Company, was interlocutory or final. Under our short method of pleading and entering judgments, it becomes necessary in determining this point, to examine into the various kinds of judgments, and particularly those by default.

By the Act of March 20th 1724-5, upon the return of the writ of summons, if the defendant has been served ten days, and the plaintiff had filed his declaration in the office of the prothonotary, within the space of five days, before the court to which such writ is returnable, it shall be lawful to and for the plaintiff in such action to file a common appearance for the defendant so making default, and proceed to judgment and execution by nihil dicit. It has not been the practice under this act to enter an appearance for the defendant, and take judgment by nihil dicit, but' to enter judgment by default, nor has it been usual to file a declaration before the return of the writ; but to take judgment after the declaration is filed, and the defendant has made default by not appearing.

This act, so construed, has been re-enacted in the revised act of June 13th 1836, except as to the time of filing the narr.

On the 11th of September 1795, the attorneys of the Supreme Court signed an agreement that they would confess judgment, unless the defendant made an affidavit of defence, which was enforced by the court, except against two of the bar who refused to sign it, and who never gave or took any judgment under it. The 20th rule established by the justices of the Supreme Court, for regulating the practice of the Supreme and Circuit Courts, in 1799, allowed the plaintiff to direct judgment of course, to be entered at the third term of the Supreme Court, unless the defendant had previously filed an affidavit of defence. A similar rule was made by the Court of Common Pleas of Philadelphia county, which was sustained by the Supreme Court in Yanatta v. Anderson, 3 Binn. 417. The District Court for the city and county of Philadelphia adopted a rule of a similar, but more stringent character, by which the plaintiff -was allowed to direct judgment by default, to be entered of course in the prothonotary’s office at any time after the third Monday of the next succeeding term, to which the process issued is returnable, unless an affidavit of defence shall have been previously filed in the office; but the plaintiff must have filed a declaration on or before the third day of the term to which the process issued is returnable. This rule does not appear in the last printed rules of the court, but upon failure to comply with a rule to plead, a judgment, in the nature of a judgment by default, may be entered. The provisions of the second section of the Act of March 28th 1835, and of the 14th section of the Act of March 11th 1836, which have been extended to the Court of Nisi Prius, and to the Court of Common Pleas for the county of Philadelphia, giving power to the courts in this county to enter judgments by default, for want of an affidavit of defence, in certain specified cases, have in a great measure superseded all former rules on the subject.

In 1838 the District Court made two decisions of great importance, which have always been regarded as sound law. In McClung v. Murphy, 2 Miles 177, the court decided, President Pettit delivering the opinion, that a judgment for want of an affidavit of defence, by default under the Act of March 28th 1835, is final and not interlocutory, although the damages have not been assessed — both as regards lien and execution. And in Hays v. Tryon, Id. 208, it was held, that a judgment by default for want of an appearance, where a narr. and statement of the plaintiff’s claim is filed, although no damages have been assessed, is a final judgment and a lien on real estate. Judge Pettit says, Id. 179, “ Now a judgment by default against a defendant is not always interlocutory; it is often final. It is interlocutory, and requires a writ of inquiry, only where the sum is uncertain. When the sum is certain, or can be made so by mere calculation, the judgment is final.” This is the true test, and this is the general principle announced by this court in Lewis v. Smith, 2 S. & R. 155, and in Commonwealth v. Baldwin, 1 Watts 57, although applied in those cases to judgments confessed.

In Watkins v. Phillips, 2 Whart. 209, which was an action of covenant on a ground-rent deed, for non-payment of ground-rent, Judge Rogers had previously expressed himself in favour of the same doctrine — “ And it has been the practice,” said he, “ instead of executing a writ of inquiry, and ivithout any previous application to the court, in actions on promissory notes, bills of exchange, covenants for the payment of a sum certain, or on an .award, and indeed in all cases where the court have nothing more to do than to calculate the interest upon a sum previously ascertained and fixed, to refer the assessment to the prothonota-ry.” In the three editions of Troubat & Haly’s Practice, of 1825, 1837, and 1853, it is said, “ the case of Lewis v. Smith, before quoted, confirms another mode of practice, highly convenient, which, although founded on a judgment confessed, may be extended, it is apprehended, to all judgments by default, which are themselves implied confessions of judgments.”

In the case before us, the action against the Merchants’ Insurance Company was assumpsit upon a valued policy of insurance on one thirty-second of the ship Diamond State. The vessel was totally destroyed by fire, and the value fixed in the policy and claimed in the declaration was $1500. There was, therefore, a fixed liquidated sum claimed in the narr., and virtually confessed by the default in not pleading, for which judgment was entered in favour of the plaintiff in our short form. The only objection to this is, that there were added to the first count in the declaration, the common short printed counts for goods bargained and sold, work done and materials furnished, money lent, money paid, money had and received, account stated and for interest, all in the nominal sum of $50,000. If the judgment had been entered by nil dicit, according to the English form, there would have been a formal remission of the damages in all the common counts, and the judgment would have been prayed for and entered on the first count for the damages assessed by the court. In our judgment shortly entered, this is included, and is supposed to be done, for it would so appear if the judgment were formally drawn out.

By the English Common Law Procedure Act, 1852, § 93: “In actions where the plaintiff seeks to recover a debt or liquidated demand in money, judgment by default shall be final.” It is clear, therefore, that in this state by practice and custom, and in England by statute, the courts are arriving at the same result, rendering judgments final wherever the demands are liquidated, and not merely sounding in damages. The judgment we are asked to sustain is usual in the interior of the state, and it would cause great confusion and difficulty if we were to declare it only interlocutory. We are therefore of opinion that the judgment against the Merchants’ Insurance Company was a final one, and a lien from its date upon the ground-rents then owned by the company, and that the sale under proceedings in that suit passed a good title to the purchaser, James M. Sellers, in fee simple of the ground-rent of $84, for the recovery of the arrears of which the present action was brought.

The judgment of the Common Pleas is therefore reversed, and judgment entered for the plaintiff.