Sloan v. McKinstry

• Decision Date: 20 October 1851
• Citation: 18 Pa. 120
• Court: Pennsylvania Supreme Court
• Parties: Sloan <I>versus</I> McKinstry.

18 Pa. 120

Sloan versus McKinstry.

Supreme Court of Pennsylvania.

October 20, 1851.

ERROR to the Common Pleas of Jefferson county.

COPYRIGHT MATERIAL OMITTED

Lucas, for plaintiff in error.

Gordon, for defendant, contended that the Court properly sustained the plaintiff's objection to the transcript, 1. Because John R. Johnston had no authority to give the transcript from the docket of David Johnston. By the Acts of 20th March, 1810, 21st January, 1839, and 13th October, 1840, a justice, on the expiration of his commission, or in case of his resignation, may either retain his docket or deliver it to one in commission, who may give transcripts from it; but there is no provision in favor of one not in commission, giving a transcript from the docket of a former justice. 2. The transcript sets out the return of a summons, but does not show that it was served. The case is therefore to be treated as an ex parte proceeding, and governed by the same rules as a judgment in foreign attachment, or where there has been no notice. As to the second exception: if the transcript was not admissible upon account of its inherent defect, parol testimony could not cure it, and was therefore properly rejected.

The opinion of the Court was delivered, October 20, by ROGERS, J.

The defendant in error contends that the Court properly sustained the plaintiff's objection to the transcript, on two grounds: 1. Because John R. Johnston had no authority to give the transcript from the docket of David Johnston; and, 2. Because the transcript sets out the return of a summons, but does not show it was served.

The first exception is disposed of by the 17th section of the Act of the 20th March, 1810. That Act enacts, "If the party defendant shall not reside in the county where a judgment is had against him before a justice of the peace, the person in possession of the docket in which such judgment may be entered, on application to him made by the plaintiff, or his agent, shall make out, certify, and deliver to such applicant, a transcript thereof," &c. The plaintiff has brought himself precisely within the words and spirit of the Act.

Nor do we think there is anything in the second exception. The decision is founded on an entire misapprehension of the law. The judgment is not void; if anything, it is voidable merely, and might have been reversed. If any point is settled, it is that a voidable judgment is binding and conclusive until reversed or set aside by a legal proceeding. It...