Rand v. King

Opinion,

Me. Justice Williams:

The contents of the paper-books, and the character of the oral suggestions made in this case, and some others at the present term, lead us to believe that it is desirable to call attention once more to the difference between the several modes of. review in use in this state.

Prior to the act of May 9, 1889, there were three of these in common use, and the peculiar characteristics of each were well understood by the profession. That most generally employed was the writ of error, which lay against any final judgment in any court of record, and against such interlocutory and auxiliary orders as have been made reviewable upon it by statute. On this writ the judgment is reviewed with reference to alleged errors which are pointed out by exceptions taken to the action of the trial court at the time when the rulings are made, and as a general rule the power of the Supreme Court is limited to the questions so raised: Warsaw Tp. Poor D. v. Knox Tp. Poor D., 107 Pa. 301. In all equity cases, and those following the equity forms, an appeal from the decree complained of is the proper mode of review. It brings up the pleadings and the evidence on which the decree rests, and makes it necessary for the appellate court to examine, and see whether the decision is just and conscionable on the case that was presented to the chancellor who made it. The remaining method was by writ of certiorari. This writ brought up the record in any given case for review and correction, but it brought the record only: Carlson’s License, 127 Pa. 330; Holland v. White, 120 Pa. 228. The errors to be corrected must appear on the face of the record: Chase v. Miller, 41 Pa. 403; and the merits cannot be inquired into upon this writ, but are left to the judgment of the court below: Election Cases, 65 Pa. 20. Neither the opinion of the', court, nor the evidence, forms any part of the record proper, a)nd for that reason they will not be examined on certiorari: Holland v. White, supra. The character of the proceeding to be reviewed, suggested, therefore, the method to be adopted, and the limits within which the practitioner should direct his preparation.

Since the act of 1889, these modes remain applicable in the same eases, within the same limits, and with the same effect as before, the only difference being that now they are all called by tbe same name. That act provides “ that all appellate proceedings in the Supreme Court heretofore taken by writ of error, appeal, or certiorari shall hereafter be taken in a proceeding to be called an appeal.” It will be noticed that this act does not profess to extend the right of review, to change its extent in cases already provided for, or to modify in any mam •ner its exercise. It simply provides that dissimilar proceedings shall be called by the same name. An appeal.in name may therefore be a writ of error or a certiorari in legal effect, and it is necessary, in every case, to look into the record, and determine at the outset of our examination whether what is “ called an appeal ” is such in fact, or is a writ of error or a certiorari. The practical effect of calling proceedings so essentially unlike by the same name, is to obscure and divert attention from the peculiar characteristics of each. This increases the sense of uncertainty on the part of the practitioner, and the labor on the part of the. appellate court. We have in this case a fair illustration.

In October, 1876, a suit was brought by Q. A. Gates,'as attor- . ney for the plaintiff, in favor of Mary A. Rand, administratrix, against A. D. King. Judgment was obtained against the defendant in November following, and has been regularly revived. In 1881, King died, and Gates, the attorney for the plaintiff, became his administrator, and was substituted as defendan fc on the record. He subsequently resigned, and Long was appointed in his place. On the 3d November, 1888, the plaintiff caused satisfaction of this judgment to be entered on the record. After-wards Gates, on a suggestion in writing that'he was the owner of the judgment, obtained a rule to shoyr'cause why the entry of satisfaction should not be struck off. This rule was made absolute on the 18th November, 1889. Long, the present administrator of King, appealed from this order, and asks us to look into the testimony, and reverse the order on the merits. The plaintiff on the record is not before us. Gates, as appellee, moves to dismiss the appeal on the ground that neither a writ of error nor an appeal lies. Our first inquiry, therefore, is what this so-called appeal really is, and what, if any, jurisdiction we have in the premises.

The judgment is not complained of. That stands now as it stood before the entry of satisfaction was made. The order complained of relates to an entry on the record of the judgment which the court has struck off, leaving the judgment in full force. The effect of the order is simply to shift the burden of proof. While the entry of satisfaction stood, it afforded evidence, prima facie, that the judgment was paid, and the plaintiff could not proceed on the judgment without overcoming the prima facie case made against her by her own entry of satisfaction. Since the order striking it off, the judgment is in the position it was before the entry was made, and the burden of showing payment is on the defendant. Nothing has been done by the court which is subject to review on writ of error, and, if this appeal is intended as the equivalent of such writ, the motion to dismiss is properly made. It is equally clear that the order which it is sought to reach is not a decree in equity, and for that reason an appeal, in the former sense of the word, will not lie, unless it has been expressly given by statute, and that is not asserted. What we have before us is the record of a court of law which shows a motion to strike off an entry made on the record by the plaintiff acknowledging satisfaction, and the disposition of that motion by the court. The opinion of the court below and the evidence are not on the record, and are not before us, although printed at length in the paper-books. If we are to treat this record as before us upon a writ of certiorari, the only inquiry is whether the proceedings shown by it are regular, and in accordance with the law.

The judgment was regularly obtained in the name of Mary A. Rand in 1876, Gates being the attorney for her. It has been revived from time to time in the name of the same plaintiff by proceedings that are not attacked. In 1888 it was satisfied by the plaintiff in due form, and she has made no application for relief from her own receipt. In 188ff the court struck off this entry of satisfaction at the instance of one who is neither a party, nor assignee or alienee holding under the party plaintiff, but a stranger to the record. It is true, the petition on w'hich the motion was based alleges a title in Gates, and this might have justified the court in granting a rule on Mrs. Rand to show cause why the judgment should not be marked to the use of Gates, and, if she denied his title, in directing an issue for trial before a jury to determine the truth of his assertion of ownership ; but the court had no more right to try the title to this judgment in a summary way, without the aid of a jury, than it would have to determine the title to a horse or a tract of land in the same manner. The court denied to the plaintiff the control of her own judgment, which had stood for twelve years, and still stands, in her favor on the record, at the instance of a stranger to that record, who has not even asked an opportunity to assert his title before a jury, that he may be put on the record as the owner of the judgment. If he owns one half or the whole of the judgment that stands in the name of Mrs. Rand, and she refuses to recognize his title, he must establish his title in the regular way, and get upon the record by an order of the court, before he can exercise the rights of a party, or be allowed to meddle with the entries made by the parties. It may be that he has a good title, and that he satisfied the learned judge who made the order that he was the owner of the judgment. If so, it does not sustain this order. He must first get upon the record. Then he will be clothed with the rights and powers of a party. There is nothing on the record to justify the court below in denying to the plaintiff control of the judgment in her favor, and striking off satisfaction that she has acknowledged.

The order of November 18, 1889, is therefore set aside.