Wilkinson's Appeal , 1870 Pa. LEXIS 211 ( 1870 )

The opinion of the court was delivered, May 5th 1870, by

Thompson, C. J.

Since the decision of Stewart v. Stocker, 13 S. & R. 199, the question in this case has not been regarded as an open one. There have been numerous decisions since, in entire harmony and in subordination to the law of that case, among them is Lowber & Wilmer’s Appeal, 8 W. & S. 387. It is therefore settled, if anything can be, that an erroneous judgment or an irregular execution — not void, can be set aside only by direct and appropriate action by parties having an interest in the same and not by a collateral attack under cover of any other proceeding. As to an irregular execution, nobody but the defendant can object to it or take advantage of the irregularity. If he do not object, to all the world he stands as consenting, and as to him the maxim consensus tollit errorem controls.

But it is supposed that the execution here was void because issued on an award of arbitrators before the twenty days allowed for an appeal had transpired. What is this more than issuing execution before the stay is out ? That was the case in Stewart v. Stocker, supra.

The Act of 1836 gives to an award of arbitrators the “ effect of a judgment as respects the party against whom it is made, from the time of the entry thereof, and declares it shall be a lien upon his real estate until reversed upon an appeal or satisfied according to law.” Why by consent or assent of defendant might it not be a judgment for the purpose of execution ? It cannot be said to be wanting either the substance or form of a judgment. The law expressly gives both these qualities to it. It so remains until reversed on appeal. Unappealed from, the plaintiff below and appellee here issued execution on his award. The defendant did not object and never appealed. There is no change in the form of the judgment before and after the expiration of the time for an appeal. The execution as to the defendant was irregular, having been issued too soon. He did not complain of that, but by his silence assented to it, and the cases cited, and others which might be cited, regard it as regular in relation to all other persons. The case was well decided by the learned judge below, and the decree of distribution is affirmed and the appeal dismissed at the cost of the appellant.