Pantall v. Dickey

• Decision Date: 07 January 1889
• Docket Number: 55
• Citation: 16 A. 789,123 Pa. 431
• Parties: J. R. PANTALL ET AL. v. W. W. DICKEY
• Court: Pennsylvania Supreme Court

16 A. 789

123 Pa. 431

J. R. PANTALL ET AL. v. W. W. DICKEY

No. 55

Supreme Court of Pennsylvania

January 7, 1889

Argued November 2, 1888

ERROR TO THE COURT OF COMMON PLEAS NO. 2 OF ALLEGHENY COUNTY.

No. 55 October Term 1888, Sup. Ct.; court below, No. 375 April Term 1887, C.P. No. 2.

On March 5, 1887, and to the number and term referred to in the court below, the transcript of a judgment before B. McKenna alderman, in favor of William W. Dickey against J. Rees Pantall and John Davis, for $200 and $6.75, costs, was filed and judgment entered thereon.

J. Rees Pantall, one of the defendants, on June 28, 1887, presented his petition, which with the exhibits thereto attached disclosed the facts following:

On June 12, 1885, William W. Dickey brought suit before B. McKenna an alderman of Pittsburgh, against J. Rees Pantall and John Davis, who were residents of the commonwealth, but non-residents of the county of Allegheny. The summons was issued to a constable, returnable on June 18th, was returned served, and on the return day, defendants not appearing judgment by default was entered for $200 and costs. Execution was issued upon the judgment on May 24, 1886, and returned the next day, no goods. On June 14, 1886, a transcript of the alderman's record of the judgment was procured, carried to Jefferson county, and a judgment entered thereon upon the docket of John T. Bell, a justice of Punxsutawney borough, who then issued an execution against the defendants.

On August 10, 1886, a writ of certiorari, issued from the Court of Common Pleas of Jefferson county at the instance of the defendants, and directed to Bell, the justice, was returned, and on September 20, 1886, exceptions were filed by the defendants (plaintiffs in the writ), which were as follows:

1. The summons was not served by the constable to whom it was issued, or by any one who appears by the record to have authority to serve it.

2. The alderman acquired no jurisdiction over the defendants below for the reason that they were non-residents of the county where the original proceedings were commenced, the same being by a long summons instead of a short one.

3. That John T. Bell, Esq., had no authority to issue an execution or entertain any proceedings upon the transcript in this case for the reason that it does not have the original summons and other evidence connected therewith as provided by law.

On October 30, 1886, the Court of Common Pleas of Jefferson county, sustained the foregoing exceptions and the proceedings of justice Bell were reversed.

Afterwards, on February 27, 1887, the plaintiff procured a second transcript from the record of alderman McKenna, and on March 5, 1887, caused judgment to be entered thereon in the Court of Common Pleas No. 2 of Allegheny county, and then caused to be issued a writ of testatum fieri facias thereon, directed to the sheriff of Jefferson county.

The petitioner prayed that the testatum fieri facias should be stayed and the judgment entered upon said last mentioned transcript be stricken from the record.

A rule to show cause was granted and the writ stayed. The answer to this rule, if any were filed, was not shown by the paper book. The defendants filed the following reasons for the granting of the prayer of the petition:

1. B. McKenna, alderman, never acquired jurisdiction of this case; the defendants being non-residents, were only amenable to summons returnable not less than two or more than four days from the date thereof, and his proceedings by reason of error in the summons were coram non judice and void.

2. The plaintiff is estopped and bound by the judgment of the Court of Common Pleas of Jefferson county had in proceedings on certiorari issued to Justice Bell, of Jefferson county, upon whose docket a transcript of the above proceedings and judgment had been entered by removal and from whose docket an execution had been issued.

On January 3, 1888, the court, EWING, P.J., filed the following opinion and decree:

The judgment in this case is on a transcript filed of proceedings and judgment had before B. McKenna, one of the aldermen of the city of Pittsburgh. The judgment of the alderman was entered June 18, 1885. On May 25, 1886, an execution issued thereon was returned, No goods to levy on. The transcript was filed as a judgment in this court March 5, 1887.

One ground alleged for interfering with the fieri facias is that it should be restricted to a levy on real estate. The uniform practice in this county has been, for a longer time than the knowledge of our oldest practitioner, that when the transcript showed an execution issued by the justice and a return of "nulla bona," the sheriff levies on either realty or personalty on an execution issued from the Common Pleas. All questions on that practice are set at rest by the act of assembly of June 24, 1885, P.L. 160.

The principal ground of the defendants' claim is that under the act March 20, 1810, 5 Sm. L. 171, a transcript of this judgment before the alderman was made out, certified and delivered to a justice of the peace of Jefferson county for execution; and an execution was issued thereon. The defendants had issued a certiorari from the Court of Common Pleas of Jefferson county to the said justice at No. 284, September Term of said court, and on October 30, 1886, that court entered an order reversing the proceedings before the justice. It is claimed by defendants' counsel that the order of the Court of Common Pleas of Jefferson county is in fact a reversal of the judgment before the alderman in Allegheny county, and that it is conclusive in this court on the present application.

Adams v. Hill, 1 Luz. L. Reg. 369, is cited in support of this position. We do not understand the case to so rule. On the contrary, it excludes any inference that the setting aside the execution on the transcript sent to the Luzerne county justice, affects the judgment of the justice in Lancaster county. In that case there had been neither summons, appearing, nor hearing, but a judgment had been entered before the Lancaster county justice on a judgment note for an amount beyond the jurisdiction of the justice. The judgment on its face was clearly void and no execution could issue thereon.

The case of Pickerton v. Lafferty, 2 W.N. 274, cited by defendants' counsel, is not in point. A judgment on transcript from an alderman had been entered in one of the courts of Common Pleas in Philadelphia county. In the meantime another of the courts of Common Pleas of Philadelphia on certiorari to the proceedings before the alderman, had reversed the judgment; and the court on evidence of this reversal set aside the judgment entered on the transcript. Any one of the four courts of Philadelphia had express power over the proceedings before the alderman.

The language of the act of 1810, under which the transcript was sent to the Jefferson county justice, is very similar to the act of April 16, 1840, P.L. 410, authorizing the transfer of judgments from the court of one county to that of another. Yet it has been uniformly ruled that the court to which the judgment has been transferred has no power to affect the original judgment. An order of the court striking off a judgment so transferred, on the ground that the record did not show jurisdiction in the court entering the original judgment, or for any other reason, good or bad, would not affect the original judgment.

Granting the power of the court of Jefferson county to set aside the execution issued by the justice in that county, and that that order stands until reversed by the Supreme Court, we are unable to see how that court had or has any jurisdiction to affect the judgment entered before the justice in this county, and this, regardless of the reasons that court had for setting aside the proceedings. The judgment before the alderman can only be reached by certiorari or appeal to one of the courts of Common Pleas of Allegheny county. It is not...