Opinion
November 22, 1929.
December 12, 1929.
Judgment — Scire facias to revive — Affidavit of defense — Sufficiency.
In an appeal from the refusal to open a judgment, the record disclosed that the judgment had been entered against the defendant for want of a sufficient affidavit of defense, in a proceeding on a scire facias to revive and continue the lien of a judgment. The defendant, in his affidavit of defense, did not set up matters arising since the entry of the judgment but attempted to attack the validity of the original judgment. The petitioner, in prior proceedings to open and to strike off the judgment, had attacked the validity of the judgment for the same reasons as set forth in his affidavit of defense to the scire facias but the Court, in both instances, had decided adversely to the petitioner. In such case, the refusal to open the judgment will be affirmed.
The only defense that can be set up in a proceeding on a scire facias to revive a judgment, is the denial of the existence of the judgment or an allegation of payment or discharge, and under no circumstances can the merits of the original judgment be inquired into.
Appeal No. 2, October T., 1930, by defendant from judgment of C.P., Northumberland County, December T., 1923, No. 406, in the case of S.J. Shelinski v. Frank Obrekes and Martha Obrekes, his wife.
Before PORTER, P.J., TREXLER, KELLER, LINN, GAWTHROP, CUNNNINGHAM and BALDRIGE, JJ. Affirmed.
Petition to open judgment. Before STROUSE, P.J.
The facts are stated in the opinion of the Superior Court.
The court refused to open the judgment. Defendant appealed.
Error assigned, among others, was the refusal of plaintiff's petition to open the judgment.
J.A. Welsh, for appellant.
Fred B. Moser, for appellee.
Argued November 22, 1929.
This appeal is from the action of the learned court below in entering judgment for want of sufficient affidavit of defense on a sci. fa. to revive and continue the lien of a judgment.
There was no defense set up of matters arising since the entry of the judgment. The appellants attempted to attack the validity of the original judgment on the ground of want of legal service and failure to comply with the Practice Act of 1915, etc. Neither of these defenses was available to the sci. fa. These issues were raised also by the appellants in their applications to open and later to strike off the judgment. The court decided adversely to the petitioner in both instances and no appeal from the court's ruling was taken, so that these appellants were concluded thereby. The only defense that could have been set up to the sci. fa. was a denial of the existence of the judgment or allegation of payment or discharge: Trader v. Lawrence, 182 Pa. 233; O'Connor v. Flick, 274 Pa. 521; Miller Bros. v. Keenan, 90 Pa. Super. 470. "Under no circumstances can the merits of the original judgment be inquired into": Curry v. Morrison, 40 Pa. Super. 301.
As none of the averments was directed to the above defenses, the court had to disregard them. The judgment is affirmed.