Lauer ex rel. Woltjen v. Ketner

Opinion by

Mr. Justice Mitchell,

On a scire facias to revive, no defence can be made except one that has arisen since the judgment. In the present case the original judgment was entered in 1873, and it was revived in 1878, without any indication up to that time that the parties defendant were husband and wife. When therefore it was again revived in 1883 against M. M. Ketner, and Ann Ketner his wife, the presumption was that the coverture had taken place since the previous revival, and that the judgment in that form was regular and authorized. There was nothing on the record to rebut that presumption, and coverture could not be pleaded or proved on a scire facias on that judgment.

These general principles are not questioned, as indeed they could not be in view of the settled line of authorities coming down as late as Conlyn v. Parker, 113 Pa. 29. But the learned judge below, relying mainly on Seymour v. Hubert, 92 Pa. 499, was of opinion that the fact of coverture having got upon the record by the revival of 1883, was available as a defence to the scire facias of 1888, and the case was to be treated as if on all fours with the decisions in Dorrance v. Scott, 3 Whart. 308, and kindred cases. But Seymour v. Hubert does not sustain the broad contention that where the fact of coverture appears on the record, no matter how it got there, it will be a defence on scire facias. On the contrary the decision is put expressly on the ground that the coverture was pleaded, and instead of demurring or moving to strike off the plea, plaintiff accepted the issue tendered and went to trial upon it, and thereby es-topped himself from objecting to proof of the fact. All that that case decided was that if issue be tendered in a special plea, and accepted, the issue must be tried even though the plea would have been demurrable. The case is cited by our late brother Clark in R. R. Co. v. Broadnax, 109 Pa. 432, 442, in support of this principle.

The fact that coverture appears on the record is not therefore by itself sufficient to make it a defence to a scire facias. The circumstances under which it gets there must also be considered. In the present case as already said the coverture only appeared on the second revival, and the presumption was that it had taken place since the first revival. The judgment of 1883 was regular on its face, and previous coverture could not be proved on a scire facias to revive it.

The order entering judgment against M. M. Ketner alone is reversed, and judgment is entered on the verdict against both the defendants.