Clarion, M. & P. R. v. Hamilton , 127 Pa. 1 ( 1889 )

Per Curiam:

If this writ of error had been taken to the judgment below, it would have been too late : Penn. Cent. Ins. Co. v. Gaus, 91 Pa. 103. The writ was taken, however, to the refusal of the court below to strike off the judgment. The ground of this motion was that the judgment was void. The writ of error was taken out in less than two years from the refusal of the court below to strike it off.

While an erroneous or voidable judgment cannot be affected by a writ of error, unless purchased within the statutory period, a void judgment is no judgment at all. It is something on the record which has no business there, which confers no rights and imposes no obligations. At the same time, it may be a source of annoyance to some one; it may becloud a title or injure credit, and the person who is injuriously affected by it has a right to have it stricken from the record.

The judgment in this ease is not a void judgment. The court below had jurisdiction of the person and the subject matter. It was entered for want of an affidavit of defence, and we must assume that the court below regarded the case as coming within the Hule of Court. The defendant thought it did not, and filed no affidavit. This is neither a good nor a safe practice. If a defendant thinks the statement or copy filed does not come within the rule requiring him to file an affidavit, it is the better practice to suggest such fact upon the record. He can then have a decision of the court upon the point. When he decides this question of law for himself, he takes the risk of it being incorrect. In the case in hand, it is at least a question whether the judgment was not properly taken. We are not required to go so far however. It is sufficient to say that it was not void. Under such, circumstances we might well quash this writ. We prefer, however, to affirm the order of the court below refusing to strike off the judgment.

Order affirmed.