Appeal of the First National Bank

Mr. Justice Clark

delivered the opinion of the court,

This appeal is taken from the decree of the Court of Common Pleas of Sullivan County, opening a judgment entered in said court, in favor of Edward Lyon, to the use of the First National Bank of Muncy, against Griffith Phillips.

The judgment was originally entered on the 19th February 1869, upon a single bill, with warrant of attorney annexed, to No 53 February Term 1869, for the sum of $800; it was revived by scire facias, issued on the 19th February 1874, to No. 89 February Term, 1874; judgment entered March 4,1876 for $467.76. A scire facias was again issued to No. 35 February Term, 1881, but before judgment, a rule was entered to show cause why the judgment, entered March 4, 1876, should not be opened and the defendant let into a defence. Upon examination of the testimony taken upon this rule, the matters urged by way of defence were found to go to the merits of the original judgment, entered to No. 53 February Term 1869, whereupon the court in the exercise of its discretion, under a power which it undoubtedly possessed, opened not only the judgment upon the scire facias but the original judgment also, and the defendant was let into a full defence. The opening of a judgment as we have said in a great many cases, is a matter for the exercise of the sound discretion of the court; the Act of 4th April 1877, which provides for an appeal, has not changed the law in that respect: Earley’s Appeal, 9 Norris, 321. Where an appeal is authorized, the only question which can arise for determination in this court is, whether that discretion lias "been rightly exercised.

It is true the defendant’s application extended to the judgment on the scire facias only, but we do not regard the action of the court as being in excess of its powers on that account. In an application to open one judgment the court might not perhaps open another which is altogether distinct and independent from it; but the original judgment here was the basis upon which the revived judgment rested; it constituted the cause of action upon which the scire facias proceeded; the entire record of both was but the record of one cause. The opening or reversal of the revived judgment it is true would not disturb the original but it was certainly within the equitable [lowers of the court, in this form of proceeding, to extend the operation of the rule, so as to reach the whole ease and give the defendant such relief as by the testimony lie was shown to be entitled.

Moreover the Act of 4th April 1877, which provides for an appeal, only extends to decisions of the court in the opening of judgments, “entered by virtue of a warrant of attorney or ini judgment notes ” where the defendant has neither bearing nor notice; it does not extend to judgments revived by scire facias as the reason for its enactment does not there exist. In Lamb's Appeal, 8 Norris, 407, the application was by the defendant to open the original judgment entered upon a judgment note, and also a series of revivals thereof; it was there held that the Act was intended to apply only to judgments remaining unchanged by subsequent judicial proceedings, and when the defendant never had his day in court. A judgment upon a scire facias duly served, whether taken for want of an appearance, plea, or affidavit of defence, or by confession in the ordinary form, is not a judgment entered upon a warrant of attorney; to secure the right of appeal the remedy must therefore be exercised before revival; for, as the present Chief Justice said in Lamb’s Appeal, supra, “it would be a strange application of equitable principles to hold that no appeal will lie for a refusal to open the revived judgment, yet that it will to a refusal to open the original judgment on which the latter judgment rests.”

It is equally clear that if in such case the defendant can have no appeal, in the event of a refusal to open, the plaintiff can have none when the decision is otherwise. It follows therefore that the appeal in this ease is not authorized by law.

Appeal quashed.