Pitts., Cin. & St. L. Railway Co. v. Marshall

• Decision Date: 22 October 1877
• Parties: Pittsburgh, Cincinnati and St Louis Railway Company <I>versus</I> Marshall.
• Court: Pennsylvania Supreme Court

85 Pa. 187

Pittsburgh, Cincinnati and St Louis Railway Company versus Marshall.

Supreme Court of Pennsylvania.

October 5, 1877.

October 22, 1877.

October 5th 1877.

Before AGNEW, C. J., SHARSWOOD, MERCUR, GORDON, PAXSON, WOODWARD and STERRETT, JJ.

Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1876, No. 190.

Hampton & Dalzell, for plaintiff in error.—Frederick Marshall the plaintiff below, has no claim against the Pittsburgh, Cincinnati and St. Louis Railway Company, the defendant below, unless by virtue of the legislative resolution of January 21st 1843 (Purd. Dig. 1, p. 90), which is in these words:

"It shall not be lawful for any company incorporated by the laws of this Commonwealth, and empowered to construct, make and manage any railroad, canal or other public improvement, while the debts and liabilities, or any part thereof, incurred by the said company to contractors, laborers and workmen employed in the construction or repairs of said improvement remain unpaid, to execute a general or partial assignment, conveyance, mortgage, or other transfer of the real or personal estate of the said company, so as to defeat, postpone, endanger or delay their said creditors, without the written assent of the said creditors first had and obtained; and any such assignment, conveyance, mortgage or transfer shall be deemed fraudulent, null and void, as against any such contractors, laborers and workmen, creditors aforesaid."

Marshall cannot invoke the protection of this resolution, because the mortgage, under which the defendant in error claims, was executed prior to the time when the Pittsburgh and Steubenville Railroad Company's liability to Marshall arose. He did not become a creditor of the company until May 12th 1862, while the mortgage was executed August 1st 1856.

The evidences of his claim are two orders on the Pittsburgh and Steubenville Railroad Company, dated September 16th 1856, accepted by said company May 12th 1862, and an acknowledgment of indebtedness presumably of the latter date. There is no averment in the affidavit of claim that these accepted orders represent the price of work done prior to August 1st 1856, or that the certificate of indebtedness is for work done at all; and certainly no presumption exists to supply a material averment omitted in the plaintiff's own statement of his case.

Fox v. Seal, 22 Wall. 424, Tyrone and Clearfield Railroad Co. v. Jones, 29 P. F. Smith 60, do not rule this case, as in both those cases the claims enforced originated prior to the conveyances which were declared invalid, while here the liability to Marshall arose after the execution of the mortgage.

Thomas C. Lazear, for defendant in error.—This case is a scire facias to revive and continue the lien of a judgment. The affidavit of defence, in the absence of the agreement of counsel under which it was filed, was, therefore, a nullity, for it sought to go behind the judgment and to set up matters entering into its merits. But in no case of a scire facias on a judgment is a defence of this kind allowed, nothing being admissible as a defence except matters occurring since the rendition of the judgment, as a release or satisfaction: Cardesa v. Humes, 5 S. & R. 68; Curtis v. Slosson, 6 Barr 265.

The affidavit of defence, therefore, so far from alleging anything that would impugn the plaintiff's original judgment, or tend in the slightest degree to show that it was not within the protection of the resolution of January 21st 1843, admits all that is necessary to sustain it, unless the sale under the mortgage and the subsequent assignments mentioned in the affidavit, would have defeated the original scire facias in which the judgment was recovered. But that the mortgage and assignments would not have this effect, it is enough to refer to the cases of Fox v. Seal, 22 Wall. 424, and the Tyrone & Clearfield Railroad Co. v. Jones, 29 P. F. Smith 60. The liability arose when the work was done by him on the company's road, some time prior to the 1st of November 1855. The orders, &c., mentioned in plaintiff's affidavit as evidences of the debt, and bearing date subsequently to the performance of the work, are only evidences, but by no means the creation of the debt. To say that they were would not only be an assumption without proof and against the truth, but...