Felt & Co. ex rel. Gifford v. Cook & Hackett , 95 Pa. 247 ( 1880 )

Mr. Justice Green

delivered the opinion of the court,

This was an application to the court below to direct a judgment to be marked satisfied. The application was necessarily made under the Act of 14th March 1876, because the power of the court to make such an order without the verdict of a jury, and where satisfaction has not been obtained by execution process, exists only by force of that statute. It had been decided by this court that even upon allegation and proof of payment of a judgment, the court had no power to strike it off or direct it to be marked satisfied, and that the only remedy of the defendant in such a case was to apply for an issue to determine whether the judgment had been paid: Horner & McCann v. Hower, 3 Wright 126. The Act of 1876, however, did confer upon the courts of record, in this Commonwealth, in which judgments were entered, the power to order such judgments to be marked satisfied upon a proper application and proofs. The language of the act is as follows : Bright. Purd. 2027, pi. 1: “In all cases where a judgment has been or may hereafter be entered in any court of record in this Commonwealth, whether originally or by transfer from any other court, the court having jurisdiction shall, upon application by the defendant or defendants in said judgment, or of his, her or their legal representatives, or other person or persons concerned in interest therein, setting forth under oath that the same, with all legal costs accrued thereon, has been fully paid, grant a rule on the plaintiff or plaintiffs to show cause why the said judgment should not be marked satisfied of record, at his, her or their costs; and upon the hearing of such rule, should it appear to the satisfaction of the court that such judgment has been fully paid, as set forth in the application-of the defendant or defendants, the said court shall then direct the prothonotary to mark such judgment satisfied of record, and shall also enter a decree requiring the plaintiff or plaintiffs to pay all costs incurred in the premises.”

The power thus conferred is summary in character, is in derogation of the common law, and is a denial of the trial by jury. Of course, it must be limited to the express language of the act which confers it. To hold that under this act everything which could be given in evidence under the plea of payment in a pending adversary proceeding before verdict, must or may be treated as actual payment after verdict and judgment, would be a very wide departure from that strict construction which such legislation requires. The letter of the act as well as its manifest spirit and meaning, alike demand that the exercise of the power conferred by it should be limited to the very case prescribed. That case is actual payment in full, but such is not this case. Instead of actual payment in full, the defendant’s petition shows there was no payment whatever of any part of this judgment. It is not even claimed that there was a right of set-off against it. The court below held there was not, and of that decision there is no complaint. One of the defendants contends that a certain judgment which he recovered against the two individuals who compose the partnership plaintiff in the present case has paid the judgment of the firm' against him and his co-defendant by operation of law. No authority is cited in support of this position, and we have no knowledge of any. The very doubtful merits of the defence set up under the bankrupt law do not require consideration, as we have no jurisdiction to apply the relief invoked under the Act of 1876 to such a case.

Judgment reversed, and record remitted for further proceedings.