Melan v. Smith ( 1890 )

Opinion,

Mr. Justice Williams:

The order complained of in this appeal was made under the authority of the act of March 14,1876. The proceeding being in derogation of the common law, the act that authorizes it must receive a strict construction: Felt v. Cook, 95 Pa. 247. It authorizes the court in which any judgment has been entered, on the application of the defendant, made under oath, setting forth that the judgment has been paid in full, together with all the costs, to grant a rule on the plaintiff to show cause why the judgment shall not be marked satisfied on the record. On the hearing of the rule, if it shall appear that the “judgment has been fully paid as set forth in the application,” the court is empowered to direct the prothonotary of the court to mark the judgment satisfied; and, as a just punishment to the plaintiff for refusing or neglecting to make the proper entry after having been fully paid, the court is directed to “ enter a decree requiring the plaintiff to pay all costs incurred in the premises.” The court has no power to apply cross-demands, or set off judgments, or to investigate original equities, in this proceeding; but the• affidavit must set out actual payment of the judgment, debt, interest, and costs in full, or the rule will not be granted. On the hearing, the proofs must show actual payment, as alleged, in full, for if the judgment is not satisfied in fact, the statute gives the court no power over it. If the proofs do not show payment of the judgment, the court must discharge the rule, for they have no power to inquire into any other fact.

The application of these principles in the case before us is easy. A judgment was entered in the Common Pleas of Luzerne county on March 1, 1886, in which Melan was plaintiff and Smith was defendant. On September 27, 1889, this judgment was assigned to Margaret Smith, who assigned to Flannery. On November 19, 1889, the defendant presented his petition to the court in which the judgment was entered, alleging that it had been paid in full, debt, interest, and costs. A rule was thereupon granted, calling on the plaintiff to show cause why the assignment should not be struck off and the judgment marked satisfied. This rule, after notice to the assignee and a hearing upon testimony taken, was made absolute on the sixth day of December following. The power of the court to strike off an assignment of a judgment at the instance of the defendant in a summary way is, to say the least possible, a very doubtful one; but the power to satisfy the judgment is expressly conferred, and when exercised, disposes of the judgment so effectually as to render inquiry upon the other subject unnecessary. The court heard the evidence, found as a fact that the judgment had been actually and fully paid, and made the rule absolute. All that remains to be done is to make the formal order authorized by the act of 1876, which may be done here.

And now, April 16, 1890, the order of the Court of Common Pleas of Luzerne county made on December 6, 1889, directing the prothonotary of said court to mark the judgment in favor of Melan, now to use of Flannery, against Smith, satisfied, is affirmed; and it is further ordered that said plaintiff, Henry J. Melan, pay all the costs incurred in the premises in said court. The costs of this appeal to be paid by the appellant.