City of Philadelphia v. Simon , 1899 Pa. Super. LEXIS 226 ( 1899 )

Opinion by

Beebeb, J.,

The facts stated in the petition upon which the rule was granted to show cause why the entry of satisfaction on the judgment should not be stricken off must be taken as true since they were not denied by any answer of the defendant. These facts show that the city was induced by a mistake of the party paying to enter satisfaction upon the wrong judgment, or upon a judgment not intended to be paid. This payment was not made by the defendant, but by an agent of the owner of a lot adjoining that of the defendant. We have no doubt of the power of the court, upon notice, to strike off the entry of satisfaction of a judgment if it appears that such entry was made by mistake or fraud : Murphy v. Flood, 2 Grant, 411; McKinney v. Fritz, 2 W. N. C. 173. There is nothing in Delaney v. Gault, 30 Pa. 63, that denies this right. All that was decided in that case, so far as it has any bearing upon the question now before us, is that the city cannot, whilst it has in its possession the money received in payment of a muncipal lien, issue a scire facias upon it and convey a good title to a purchaser at the sheriff’s sale. It is no authority at all on the question whether the city can strike off its entry of satisfaction on one lien by showing that the money which was received for that satisfaction was paid to secure the satisfaction of another lien, and that the satisfaction on the wrong lien was made by a mistake-caused by the party paying. Of course we are not now considering the question of the effect of this correction upon the rights of subsequent judgment creditors, mortgagees or other persons who have secured bona fide an interest in the lot, the lien upon which was mistakenly satisfied. Such persons are not now before us and it will be time enough to consider that question when it appears that there are such persons.

. In answer to the motion to quash we would say that we are satisfied that this case belongs to that class in which it is held that the decree appealed from is not such a final one as allows a certiorari. It is similar to an order striking off the satisfaction of a judgment which, it has been held, has only the effect of changing the burden of proof: Rand v. King, 134 Pa. 641. The question of payment and the consequent right to have the lien satisfied, as well as all other defenses to the lien, can be tried in the issue upon the scire facias which defendant can compel to be issued at any time. All these defenses should be tried at the same time and a final judgment obtained from which an appeal will settle all questions involved. The cases establishing this rule are so familiar that they need not be cited. However, the recent case of Whitesell v. Peck, 165 Pa. 571, would seem to be a departure from this rule. We do not think it was intended to be so, for the question whether the order appealed from was a final one does not seem to have been raised in the argument or considered in the opinion, so far as the report of the ease reveals. We mention this now only because we are unwilling that this present case should become a precedent for appeals in similar cases.

Judgment affirmed.