Griffin v. Davis , 6 Pa. Super. 481 ( 1898 )

Per Curiam,

When the rule to quash the ca. sa. came up for disposition all that the court had before it from which to determine the nature of the judgment was the transcript from the doeket of the justice of the peace. This showed a judgment in air action apparently begun by a summons in assumpsit, and failed to show with any degree of certainty that the proceeding was intended to enforce a statutory liability in the mode prescribed in the 12th section of the act of 1810. This being the condition of the record, the court properly held that there was no warrant of law for issuing a ca. sa. upon the judgment and quashed the writ; All that need be said in vindication of that ruling is contained in the opinion rendered by the learned judge of the court below.

Nor was the case brought within the provisions of the Act of March 29, 1824, P. L. 171, by proof subsequently furnished by affidavit or depositions that the writ actually issued by the justice was not a summons in assumpsit, as the record seemed to show, but a summons in the nature of a scire facias in the form prescribed by the act of 1810. To entitle the plaintiff to a ca. sa. under the provisions of the act of 1824 he must show a record in substantial conformity to the provisions of the 12th seution of the act of 1810, otherwise he must be content with the ordinary process to enforce the judgment. We do nob say he must show a perfect record — one that could not be successfully assailed on certiorari — but it must at least purport to be a proceeding to enforce a liability in the mode there prescribed. The defendant is entitled to have the question of the plaintiff’s right to issue a ca. sa. determined by the record as it was made up by the justice, for possibly he might have seen fit to appeal if it had been made up differently. But we need not seek for reasons to support the well-settled general rule that the execution must follow the judgment and be warranted by it. The writ issued by the justice was no part of the record of the common pleas. The question was to be determined by an inspection of the transcript, which could not be supplemented or changed, for the purposes of this motion, by parol evidence of the proceedings before the justice, any more than it can be for the purpose of depriving a party of an appeal. See Dawson v. Condy, 7 S. & R. 366; D. & H. Co. v. Loftus, 71 Pa. 418; Foss v. Bogan, 92 Pa. 296 ; Driesbach v. Morris, 94 Pa. 23.

All the assignments are overruled.

Order affirmed and appeal dismissed at the cost of the appellant.