Stephens v. Downey , 1867 Pa. LEXIS 42 ( 1867 )

The opinion of the court was delivered, by

Read, J.

In Stephens’ Executors’ Appeal, 2 Wright 9, in speaking of the judgment which forms the groundwork of the present action, my Brother Thompson uses this language: “ The appellants’ judgment was obtained under the provisions of the Act of 16th June 1836, regulating amicable arbitrations. The statute requires the submission to be approved by the court and judgment to be entered on the award, giving to the record, in the meantime, only the effect of a verdict of a jury.

“ In Greene county there is a rule of court regulating the practice in amicable arbitrations, and it authorizes the prothonotary, on the award being filed, to enter judgment nisi thereon, and after four days’ notice of the filing of the award by the party wishing to enforce it, he shall be entitled to have judgment absolute entered.

“ The award was filed and judgment nisi entered on the 18th February 1854, and on the same day it was entered on the lien-docket ; on the 28th of the month final judgment was entered, pursuant to notice, but no further entry was made in the lien-docket. It was conceded by the appellants’ counsel that the judgment in the case was to be taken to be of the 28th of February, and that the judgment nisi did not constitute a lien. It is true he was forced to this by the fact that his sci. fa. would not be within five years,' if the entry in the lien-docket was to be considered the entry of the judgment. From an examination of the ¡Drovisions of the Amicable Arbitration Law, we are inclined to think he was right. The judgment nisi was but a step towards final judgment; and until the final step was taken by the terms of the act, the award was to have no greater effect than the verdict of a jury. The final step was not taken until the 28th of February 1854, when judgment absolute was entered. It became a lien clear of all doubt then, only as between the parties.

“ It seems to me that this excludes the idea of an anterior lien by virtue of an immature judgment:” and there can be no doubt that this is a true exposition of the law.

A scire facias was issued on this judgment on the 28th February 1859, and it is not contended by the plaintiffs’ counsel that if the judgment was not entered and did not become a lien until the 28th February 1854, as we have already decided, that the writ was not in time. <

If then the scire facias was in due time, is the defendant, as an attorney at law, liable for the error of the prothonotary in entering on the lien-docket only the judgment nisi, and not the final and only judgment in the suit ?

It is made the express duty, by statute, of the prothonotary to do this, and if not done by him, the attorney is not liable for what is not his neglect but that 'of the officer of the law.

Besides, by the Statute of Limitations, the remedy, if there ever was any, is barred under the cases of Miller v. Wilson, 12 Harris 121, and Campbell’s Adm’r. v. Boggs, 12 Wright 524, for his breach of duty occurred on the 28th February 1854, and it would be useless to send this case back for a new trial.

The defendant had shown himself a careful and diligent attorney and counsel, and had collected and paid over a considerable portion of the original judgment to the plaintiffs, as executor, and argued the case in 2 Wright for them with great ability, and it would seem harsh at this late day, for these plaintiffs to turn round and attempt to punish him for the error of an officer of the tribunal in which the judgment was obtained, and whose positive duty it wa& to have entered it on the judgment-docket.

Judgment affirmed.