Pittsburgh, Cincinnati & St. Louis Railway Co. v. Marshall , 1877 Pa. LEXIS 234 ( 1877 )

Mr. Justice Mercur

delivered the opinion of the court, October 22d 1877.

The original judgment was against the Pittsburgh and Steuben-ville Railroad Company. It was recovered for work done by the defendant in error in the construction of the railroad for that company. The indebtedness was evidenced by written certificates dated 16th September 1856. The corporation became insolvent. All its property, real and personal, and its franchises were sold under a decree of court, and the company ceased to exist. The purchaser and others for whom he acted, organized a railroad company. After some further changes and transfers, the whole property and franchises became vested in the plaintiffs in error; subsequently to this a scire facias issued on the original judgment, with notice to the plaintiffs in error, under the Act of April 4th 1862, Purd. Dig. 91, pi. 6, and judgment by default was duly recovered against it. On that judgment, and to revive and continue the lien thereof, this scire facias issued. It issued against the same parties who were defendants in the judgment recovered on the former scire facias. The plaintiffs in error were therefore restricted in their defence to either denying the existence of the judgment on which the sci. fa. issued, or to showing payment or some equitable defence, which had arisen subsequent to its rendition. It is well settled that the merits of the judgment on which the scire facias issued-cannot be inquired into: Cardesa v. Humes, 5 S. & R. 68; Lysle v. Williams, 15 Id. 135; Davidson v. Thornton, 7 Barr 128; McVeagh v. Little, Id. 279; Alden et al. v. Bogart, 2 Grant 400; Stewart v. Colwell, 12 Harris 67.

No plea of mil tiel record was interposed. The affidavit of defence avers no fact which has arisen since the recovery of the former judgment.

It is true an application made to open that judgment was refused; but the action of the court therein is not before us for review. It therefore stands in substance and in form on the record as a valid judgment, and conclusive of the matters therein adjudged.

It is contended that the decree made in McElrath v. The Pittsburgh & Steubenville Railroad Co., 5 P. F. Smith 189, declaring the mortgage executed by that company to be the first lien on its property and franchises, gave it priority over the lien of the defendant in error, and that the sale under the mortgage divested all other liens.

Inasmuch, however, as the defendant in error had no notice of those proceedings, and was neither a party nor privy to that decree, he is in nowise bound thereby.

It is further urged that giving due effect to the cases of Fox v. Seal, 22 Wall. 424, and Tyrone & Clearfield Railroad Co. v. Jones, 29 P. P. Smith 60, yet, inasmuch as the affidavit of defence avers that the mortgage, under which the plaintiff in error claims, was executed on the 1st of August 1856, that is prior to the date of the certificates, on which the defendant in error recovered, and therefore the lien of the latter was divested by the sale under the mortgage.

The affidavit omits to state on what day the mortgage was delivered or recorded. The case of McElrath v. Pittsburgh & Steubenville Railroad Co., supra, is referred to as establishing the priority of its lien. A reference to that case shows that while the mortgage was dated on the 1st of August 1856, yet it was not, in fact, until the 9th of October following that the final order was made for the issuing thereof. It was acknowledged on the day thereafter, and not recorded until the 20th of October. The lien of the defendant in error was therefore prior in time; hence it follows that the defence set up is not only too late in point of time, but manifestly insufficient, if it had been averred during the pendency of the first scire facias.

Judgment affirmed.

Agnew, C. J., dissents.