Horton and Heil v. Miller
| Court | United States State Supreme Court of Pennsylvania |
| Writing for the Court | Thompson |
| Citation | 44 Pa. 256 |
| Decision Date | 16 February 1863 |
| Parties | Horton and Heil <I>versus</I> Miller. |
Page 256
ERROR to the Common Pleas of Schuylkill county.
Page 257
J. Wright, for plaintiffs in error.
Campbell & Smith, for defendant in error.
The opinion of the court was delivered, February 16th 1863, by THOMPSON, J.
This case was brought up on writ of error, but as the merits of the question desired to be tested could not be reached in that form, it was turned into an appeal. It was an application to the equitable powers of the court below to set off a judgment held by John Horton against a judgment which had been obtained by Miller against him and Heil. A writ of error in such a case would only bring up the judgment in which error was alleged, but not the petition on which the application was founded nor the testimony; it was therefore necessary and proper, as it was a case in equity, to change into an appeal.
It has been long settled that judgments not in inconsistent rights may be set off against each other: not by force of the defalcation act, but as was said by Gibson, C. J., in Ramsey's Appeal, 2 Watts 228, "by the inherent powers of the courts, immemorially
Page 258
exercised, being almost the only equitable jurisdiction originally appertaining to them as courts of law remaining." This was said before the Act of 1836, extending equity jurisdiction to the courts. Still that act does not touch the question. Much the same thing was said by Kennedy, J., in Filbert v. Hawk, 8 Watts 445.
The court below, we think, committed no error in refusing the set-off prayed by the complainant, for the very sufficient reason that he was clearly not entitled to it against the assignee of the judgment of Miller v. Horton and Heil. That judgment had been previously on the 8th of December assigned to Reed, and so marked on the docket on the 12th of January 1859.
The assignment to John Horton of part of the judgment of R. F. H. Horton v. Miller, now sought to be set off, was entered on the docket on the 17th of February 1859, the suggestion of the use reciting, however, that it had been made between the 2d and 12th of December 1857. This was a month before the action of slander in which the judgment finally obtained was commenced. It is not necessary to consume time to prove that such an arrangement could not, if it had been proved to have been made, which it was not, have affected a bonâ fide assignee of the judgment without notice of it. If it was...
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Vaill v. McPhail
...in their interpretation of statutes to maintain the old distinction between appeal for equity and error for law review. In Horton v. Miller, 44 Pa. 256, as the relief sought was equitable, the court turned a writ of error into an appeal. In considering this matter the Supreme Court of Nebra......
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Skinner v. Chase
...... 228; Jacoby v. Guier, 6 Serge. & Rawle 448;. Filbert v. Hawk, 8 Watts 443; Horton v. Miller, 44 Pa. 256; Hazelhurst v. Bayard, 3. Yeates 152; Burns v. Thornburgh, 3 Watts 78;. ......
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...... on motion or rule to set off judgments could not be reviewed. on writ of error. And in Horton v. Miller, 44 Pa. 256, it was expressly held that the proper remedy was by. appeal. And see ......
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Leitz v. Hohman
...the record, the action of the court on motion or rule to set off judgments could not be reviewed on writ of error. And in Horton v. Miller, 44 Pa. 256, it was expressly held that the proper remedy was by appeal. And see Aber's Petition, 18 Pa. Super. Ct. 110. The proceeding being in its nat......