Sayers v. Bayard , 1898 Pa. Super. LEXIS 33 ( 1898 )

Opietoe by

Porter, J.,

The determination of the rights of the parties, as this cause is now presented, is not of such difficulty as at first appears from the size and complications of the record. It is an appeal from a judgment entered on a scire facias to revive. The error assigned is the action of the court in directing a verdict for the plaintiff. At the trial the plaintiff presented the record of the original judgment. The defense offered no evidence, relying upon alleged defects in entering the original judgment on an award of arbitrators, nunc pro tunc, after the death of the defendant. It is not necessary to decide whether this was a fatal irregularity or not, but even assuming that it was, it is difficult to see how it can be used as matter of defense on preceedings to revive. The place to attack the judgment for irregularity was on rule to open or to strike off. The defendant recognized this and took such a rule. It was considered.by the court below, and an opinion was filed, holding that the judgment had been properly entered. The defendant took no appeal from the refusal to open or strike off, but now desires to set up the same matter in defense in the proceedings by scire facias to revive.

We think the court below committed no error in directing a verdict for the plaintiff, — the record in evidence disclosing a judgment in form, and the defendant submitting no legal defense.

The opinion of Chief Justice Gibson, in Davidson v. Thornton, 7 Pa. 128, fully sustains the conclusions here expressed. “No exception can be taken to the validity of a judgment, sought to be revived either for the purpose of execution or of lien, if it stand in substance and in form on the record as a judgment of the court. From the time of Lewis v. Smith, 2 S. & R. 142, to the present day it has been constantly held, with two exceptions when the court were divided, that an erroneous judgment is valid between the parties and those claiming under them till it be set aside on motion, or reversed on writ of error. If the defendant deny the judgment, he fails, if a judgment in form is produced; and he will not be heard if he attempt to show that it ought not to have been rendered.”

The judgment of the court below is affirmed.

Smith, J., concurs in the judgment.