McMurray's Administrators v. Hopper

• Decision Date: 05 January 1863
• Citation: 43 Pa. 468
• Court: Pennsylvania Supreme Court
• Parties: McMurray's Administrators, Widow and Heirs, <I>versus</I> Hopper.

Page 468

43 Pa. 468

McMurray's Administrators, Widow and Heirs, versus Hopper.

Supreme Court of Pennsylvania.

January 5, 1863.

ERROR to the District Court of Allegheny county.

Kirkpatrick and Mellon, for plaintiffs in error.

William B. Negley, for defendant in error.

The opinion of the court was delivered, January 5th 1863, at Philadelphia, by WOODWARD, J.

This was a scire facias, sued out of the District Court, to revive a judgment, transferred from the Court of Common Pleas. The record of the Common Pleas showed that on the 30th March 1838, Joseph McMurray confessed a judgment to Samuel Hopper, before a justice of the peace, whose certified transcript was filed in the Common Pleas on the 3d April 1838 — that to October Term 1841, No. 226, Hopper issued his scire facias to revive this judgment against the administrators of McMurray, and obtained a judgment for $1000 on the 5th April 1845, and that to June Term 1845, No. 21, he issued another scire facias against the same defendants, and obtained a judgment of $1253.75 on the 22d December 1847. To revive this last judgment he took his present writ against not only the personal representatives of the decedent, but also against his widow and heirs.

When the record of the above judgments was offered in evidence, it was objected to on the ground that the Court of Common Pleas had no jurisdiction of civil suits where more than $100 were in controversy, and that consequently the above judgments were null and void. The objection was grounded on the Act of Assembly of 12th June 1839, Purd. 248, which authorized the removal into the District Court of "all suits and causes" depending in the Common Pleas, where the sum in controversy exceeded $100, and limited the future jurisdiction of the Common Pleas to civil controversies of that amount. That judgments already rendered were not intended by the words "suits and causes" is apparent, from the subsequent Act of 23d February 1847, Purd. 250, which authorized the transfer to the District Court of "all judgments over $100 remaining unsatisfied in the Court of Common Pleas of Allegheny county, on which scire facias have issued, or may hereafter issue, to revive the same," and the District Court is authorized to take and exercise the same jurisdiction over such judgments, and the process thereupon, as if they had been originally obtained in that court.

It is manifest, therefore, that until 1847 the legislature did not intend to oust the jurisdiction of the Common Pleas over judgments exceeding in amount $100. The act of that year was passed before the judgment now sought to be revived was entered, and the scire facias that was pending when the act passed might have been removed, but was not, and nothing but an actual removal, in accordance with the statute, would impair the already duly-attached jurisdiction of the Common Pleas. The judgment of 1847 was well rendered, therefore, in that court.

It might be added, if it were necessary to the disposition of the point, that the failure to plead to the jurisdiction, not only in this scire facias, but in both of those that issued out of the Common Pleas, would have been a sufficient answer to the objection raised to the evidence. After a defendant has pleaded the general issue three times to successive scire faciases on the same judgment, it is too late for him to take advantage of a defect of jurisdiction, even if a defect existed, on a bill of exception to evidence.

The only other question upon the record is, whether the court were right in directing a verdict for the plaintiff, and in entering judgment thereon. To appreciate this question in all its bearings, it will be necessary to keep in view the leading facts of the case. On the 4th day of March 1837, Hopper sold to McMurray, by articles of agreement, a house and lot in Noblestown, Allegheny county, for a consideration of $1000, on a credit of ten years from 1st April 1837; a judgment to be confessed by McMurray, for the purchase-money, when Hopper should make the deed. And in respect to that judgment it was expressly agreed that "it was to be a lien upon the property sold, and upon the house and lot opposite to it, directly across the state road, and not to affect any other part of said McMurray's estate or property."

On the 30th March 1838, the title having been conveyed, the parties appeared before a justice of the peace, and McMurray confessed a judgment for $1000, in which it was again agreed "that this judgment is to be a lien only upon the house and lot sold, and upon the corner house owned by the defendant, opposite to the house sold or across the state road." A transcript of this judgment was filed in the Common Pleas, to June Term 1838. It was admitted that McMurray died in 1840 or 1841. To October Term 1841 the first of the scire faciases before mentioned was issued, and was served only on the personal representatives of McMurray. After a second scire facias in 1845, and judgment thereon, the two houses and lots in Noblestown were levied on by virtue of a fi. fa. issued by Hopper, and sold to him for $400. Then came this scire facias to revive the judgment, for the balance due, against the widow and heirs of the decedent, with a view of charging other real estate, of which McMurray died seised.

The main objection urged against the plaintiff's recovery was, that his judgment was satisfied by the sheriff's sale of the two lots to which its lien was restricted. We do not think so. That would be to make a mortgage of the judgment. Undoubtedly there is no further remedy on a mortgage after you have exhaused the thing pledged, and hence it is usual to accompany such securities with a judgment, or a bond whereon a judgment may be obtained. But a restricted judgment is not a mortgage, because it stands in the same need of revival once in five years as all other judgments, and an unconditional revival of it against the defendant in his lifetime makes it a general lien on all his lands in the county: Dean's Appeal, 11 Casey 405. These qualities prove it to be a mere judgment and not a mortgage.

But in this case no unconditional revival was obtained in the lifetime of McMurray. What was the effect of the two revivals against his administrators? Simply to continue the lien as restricted by the agreement of the original parties. Under the 33d section of the Decedent's Act of 24th February 1834, Purd. 199, Hopper could not enforce his judgment after McMurray's death, even against the two lots bound by it, without...