Loomis v. Ross , 12 Pa. Super. 95 ( 1899 )

Opinion by

Orlady, J.,

This appeal is from an order of the court below refusing to' stay a writ of fieri facias, which had been issued on a judgment, entered by the court on May 20,1895. A fruitless attempt had been made by one of the defendants to have the original judgment opened so that a defense could be made thereto by Eleanor B. Ross, the petitioner. After several attempts to have the-judgment opened, on motion of the plaintiff’s attorney, it was. liquidated and finally entered by the court against both the defendants for the amount wdiich was admitted to be due by the affidavit of defense which was filed by W. L. Ross, and no' appeal has ever been taken from this decree of the court below. Possibly this was erroneous but it is not brought up for review under the assignments of error.

A rule to show cause why the judgment should not be stricken from the record was next taken by Eleanor Ross, and, after testimony had been taken by both the plaintiff and the defendants, a full hearing was had in the court below and the rule was discharged, from which decree no appeal has been taken.

On September 28,1898, a writ of fieri facias was issued on the judgment, against both the defendants, but it appears that W. L. Ross had died in the preceding March or April, and that no substitution had been made of his heirs or legal representatives. Before the execution of the writ, on motion of the plaintiff and by leave of the court, it was amended nunc pro tunc, “ as of the date of issuing the same so that it shall appear as being issued against Eleanor Ross, who survives W. L. Ross, and the proceeding thereon to be limited to the estate of the said Eleanor Ross.”

The action of the court below in these two proceedings cannot be reviewed on this appeal. By the defendants not taking an appeal they- accepted the judgment as a final one, and it was sufficient to support the writ of fieri facias. Under the facts the allowance of the amendment was' not error. With the effect of the sale we have nothing to do under the assignments of error, and the judgment is affirmed.