McCutcheon ex rel. Gregg v. Allen ( 1880 )

Mr. Justice Mercur

delivered the opinion of the court, November 26th 1880.

■ The record shows a scire facias issued on a mortgage, service of writ accepted by the defendant, and affidavit of defence filed. Afterwards the affidavit of defence was withdrawn and judgment confessed by the defendant for a sum specified as per writing filed. Thus it is shown to have been a judgment in all respects regular in form.

On petition of the defendant the court afterwards granted a rule to show cause why the judgment should not be opened and satisfied to the extent of a sum specified in petition. ' An answer was filed denying the averments in the petition. Depositions were taken, and after argument the rule was made absolute and judgment reduced as prayed for. Thus the court in effect ordered satisfaction to be entered for a part of the judgment. The discretion of the court in 'opening the judgment we will not review'. But in ordering satisfaction to be entered of a part of the judgment, when the facts were disputed and there was no agreement to submit to the decision of the court, ivas error. The court has no power to strike off a judgment regular on its face when the facts are controverted: Breden v. Gilliland, 17 P. F. Smith 34; nor to compel it to be satisfied. The proper course is to award an issue: Homer & McCann v. Hower, 3 Wright 126. The plaintiff therein cannot be deprived of his constitutional trial by jury unless he has agreed to waive it. In this case the record does not show any waiver, 'and it was admitted on the argument there was no such agreement. The evidence is persuasive that the judgment was the result of a compromise of the plaintiff’s claim. Against his consent he cannot be deprived of it without its validity being passed upon by a. jury. Regularly this should be reviewed on writ of error. We can now change to one, and it is ordered accordingly. An appeal does not lie;

Judgment reversed, and a procedendo ordered.