Opinion
April 30, 1924.
July 2, 1924.
Judgment — Sci. fa. to revive — Evidence.
The validity of a judgment obtained before an alderman cannot be attacked in the court of common pleas, either on motion to strike off or by way of defense to a scire facias. On a scire facias to revive a judgment, no defense can be made except a denial of the judgment or proof of a subsequent satisfaction or discharge thereof.
On a scire facias to revive a judgment, a defense that the constable had not served the original writ upon the defendant, in contradiction of the constable's return, is not admissible.
Diamond v. Tobias, 12 Pa. 312, distinguished.
Appeal, No. 119, April T., 1924, by Samuel Y. Free, from judgment of C.P. Allegheny Co., Oct. T., 1922, No. 2295, making absolute rule for judgment for want of an affidavit of defense in the case of F.M. Taylor v. Frank H. Tudor et al.
Before HENDERSON, TREXLER, KELLER, LINN and GAWTHROP, JJ. Affirmed.
Rule for judgment for want of a sufficient affidavit of defense. Before ROWAND, J.
The facts are stated in the opinion of the Superior Court and in the report of a former appeal at 81 Pa. Super. 306.
The court made absolute the rule. Samuel Y. Free appealed.
Error assigned was, among others, the decree of the court.
Harvey A. Miller, of Miller Nesbit, for appellant.
Ralph L. Smith, for appellee.
Argued April 30, 1924.
When this case was here before ( 81 Pa. Super. 306) we pointed out that a judgment entered in the court of common pleas upon a transcript from an alderman or justice of the peace, regular upon its face, cannot be set aside or its validity questioned in the court of common pleas; that any attack upon its validity must be made in the court where it was originally obtained; if set aside there, the judgment in the court of common pleas falls with it. That was an appeal from an order of the court of common pleas discharging a rule to strike off the transcript of a judgment obtained before an alderman.
The same appellant now appeals from a judgment for want of a sufficient affidavit of defense entered in the scire facias issued in the court of common pleas on the judgment entered upon such transcript. The defenses set up in the affidavit of defense were practically the same as the grounds presented for striking off the transcript, and were ineffectual to prevent judgment. The validity of the judgment obtained before the alderman cannot be attacked in the court of common pleas either on motion to strike off or by way of defense to a scire facias. On a scire facias to revive a judgment no defense can be made except a denial of the judgment or proof of a subsequent satisfaction or discharge thereof: Dowling, Admx., v. McGregor, 91 Pa. 410; Lauer to use, etc., v. Ketner, 162 Pa. 265; O'Connor to use etc. v. Flick, 274 Pa. 521.
The record assailed by the plea of nul tiel record was not that of the alderman, but of the judgment in the court of common pleas, to revive which the scire facias was issued, and an inspection of that record and its regularity by the court was sufficient to overrule such plea: Barber v. Chandler, 17 Pa. 48, 50.
The averments in this affidavit of defense do not bring the case within the ruling of the Supreme Court in Diamond v. Tobias, 12 Pa. 312. That case was tried before a jury upon the plea of payment and the court left it to the jury to determine whether there were sufficient circumstances adduced in evidence, in addition to a delay of nineteen years and five months in entering the transcript, to support such plea. Here there was no allegation of payment; defendant's main defense rested upon a denial that the constable had served the original writ of summons upon him, in contradiction of the constable's return. This defense was not open to the defendant in this proceeding: Clark v. McComman, 7 W. S. 469; Holly v. Travis, 267 Pa. 136.
The assignment of error is overruled and the judgment is affirmed.