Mutual Life Insurance ex rel. Scott v. Tenan , 188 Pa. 239 ( 1898 )

Opinion by

Mr. J ustión Green,

The proceeding in this case was a scire facias on a mortgage given by Smith, the defendant’s testator, to the legal plaintiff. An affidavit of claim was filed for a portion of the debt secured by the mortgage, the other portion having been paid. There was no service of the writ upon the terre-tenant, Stevenson, and there was no appearance and no affidavit of defense filed by the executor of Smith. On motion of the plaintiff’s counsel, the court entered judgment' against Tenan, executor of Smith, for want of an affidavit of defense, and the same day the amount due was liquidated by the prothonotary at $2,106.65. In the case of Seymour v. Hubert, 83 Pa. 346, it was decided that an executor or administrator is not required to file an affidavit of defense in a suit on a contract made by a decedent where the cause of action arose before the decease of the latter, and therefore that no valid judgment could be entered in such case for want of an affidavit of defense. It follows that the judgment so entered in the present case is a void judgment and must be set aside. It is very clear under the decision in Cadmus v. Jackson, 52 Pa. 295, that Stevenson, as terre-tenant, had a right to appeal. His land was levied upon under a levari facias issued upon the judgment recovered against the executor of Smith, and his title was in jeopardy. For this reason the judgment must be reversed.

Judgment reversed.