McCutcheon v. Allen
| Decision Date | 26 November 1880 |
| Parties | McCutcheon, to use of Gregg, <I>versus</I> Allen. |
| Court | Pennsylvania Supreme Court |
Before MERCUR, GORDON, PAXSON, TRUNKEY, STERRETT and GREEN, JJ. SHARSWOOD, C. J., absent
Certiorari to the Court of Common Pleas of Butler county: Of October and November Term, 1879, No. 325.
J. M. Thompson and Newton Black, for appellant.—The plaintiff presented his petition reciting the facts fully, praying the court to revoke its order of 29th May 1879, reducing the judgment to $19,086.67, and to allow him to defend against the allegations of Allen's petition, and to direct an issue to try all questions in dispute. On this rule testimony was taken — to which the attention of this court is respectfully called — and after due consideration this rule was, on the 18th September 1879, discharged. The only course for plaintiff was to appeal to this court and ask that they examine his case, and if satisfied that he has been injured, to grant him relief, as has been done in analogous cases by this court where the court below granted rules to show cause, and after hearing discharged them. Appeal was taken to this court, and the order of the court below was reversed and procedendo awarded. See Neff v. Miller, 8 Barr 348; Roddy's Appeal, 22 P. F. Smith 98, also Steele's Appeal, Id. 101, where "appeal" is recognised as the remedy.
E. R. Eckley and Charles McCandless, for defendant in error.— An appeal will not lie in this case. It can only be reviewed on a writ of error.
The record shows a scire facias issued on a mortgage, service of writ accepted by the defendant, and affidavit of defence filed. Afterwards the affidavit of defence was withdrawn and judgment confessed by the defendant for a sum specified as per writing filed. Thus it is shown to have been a judgment in all respects regular in form.
On petition of the defendant the court afterwards granted a rule to show cause why the judgment should not be opened and satisfied to the extent of a sum specified in petition. An answer was filed denying the averments in the petition. Depositions were taken, and after argument the rule was made absolute and judgment reduced as prayed for. Thus the court in effect ordered satisfaction to be entered for a part of the judgment. The discretion of the court in opening the judgment we will...
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Dahlstrom v. Featherstone
...action where all parties claiming an interest are brought before the court. (Mayer v. Sparks, 3 Kan. App. 602, 45 P. 249; McCutcheon v. Allen, 96 Pa. 319.) Gray Knight, W. K. Shissler, and Carlton Fox, for Respondents. Attorney's fees may be awarded where the mortgage provides therefor, and......
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Knox v. Hilty
...at which it was entered. The court was without power to make it; O'Hara v. Baum, 82 Pa. 420; Breden v. Gilliland, 67 Pa. 34; McCutcheon v. Allen, 96 Pa. 319; King Brooks, 72 Pa. 363; Reynolds v. Barnes, 76 Pa. 430; Catlin v. Robinson, 2 W. 380; Stephens v. Cowan, 6 W. 513; Beale v. Commonwe......
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Lillie v. Dennert
... ... It has ... been held that such an order is a decision from which a writ ... of error will lie. See McCutcheon v. Allen, 96 Pa ... 319, 329; also Cooley v. Gregory, 16 Wis. 303, in ... which an appeal was allowed. In view of the result which we ... reach ... ...
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Nixon v. Nixon
... ... will justify a court in setting aside or striking off a ... judgment." In the earlier case of McCutcheon v ... Allen, 96 Pa. 319, 323, this Court had said: "The ... court has no power to strike off a judgment regular on its ... face when the facts ... ...