McClurg v. Schwartz
| Decision Date | 11 November 1878 |
| Citation | 87 Pa. 521 |
| Court | Pennsylvania Supreme Court |
| Parties | McClurg <I>et al. versus</I> Schwartz <I>et al.</I> |
Before AGNEW, C. J., SHARSWOOD, MERCUR, GORDON, and TRUNKEY, JJ. PAXSON and WOODWARD, JJ., absent
Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1878, No. 204.
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George P. Hamilton and James M. Stoner, for plaintiffs in error. —The judgment having been taken on the ninth day after the return of the alias writ was premature and therefore void: Faunce v. Subers, 1 W. N. C. 248.
No counsel nor paper-book for defendants in error.
It may be conceded that on the facts set forth in Mrs. McClurg's petition and affidavit that the deed from her husband to William T. McClurg, followed as it was by the sheriff's sale of the interest of her husband and the subsequent conveyance to William A. McClurg, the mortgagor and defendant, were all intended to defraud her of her dower in the premises; and that the mortgagees, when they took the mortgage, had constructive notice of the title of the husband and of her right, she would have had a strong equity to be allowed to intervene and to have a rule to show cause why the judgment should not be opened and she be let into a defence to the extent of her dower. Had she made out by depositions even probable grounds to support her allegations, no doubt the court would have opened the judgment: for as the case stands if the property under proceedings on this mortgage should pass into the hands of a bona fide purchaser without notice of the fraud she could not enforce her title against him. The sheriff's sale at law divested her dower. But this she did not ask to do. She petitioned to be allowed to intervene not to open but to set aside the judgment, and it was for that purpose only that she was allowed to intervene. What she sets up on this writ are simply irregularities, if they are such that the second scire facias was not made returnable to a proper return-day and the judgment by default was taken a day before it could properly be taken. The mortgagor and defendant, if he had appeared could have confessed judgment, and of course could have waived the irregularities in the proceedings. Mrs. McClurg has no right to assign these errors. Her appeal ought to have been to the equitable power of the court to...
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... ... (McWillie v. Martin, 25 Ark. 556; Robinson v ... Com'rs, 12 Md. 132; Bernard v. Douglas, 10 ... Ia. 370; Smith v. Schwed, 9 F. 483; McClurg v ... Schwartz, 87 Pa. 521; Lowber v. Mayor, etc., 26 ... Barb., 262.) But the intervenor may be regarded as an amicus ... curiae. The court of ... ...
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