Pittsburgh, Cincinnati & St. Louis Railway Co. v. Marshall

1. The merits of the original judgment cannot be entered into by the defendant in a scire facias upon that judgment. 2. A decree of court declaring the mortgages executed by a railroad company to he the first lien on its property and franchises, does not give them precedence over the prior lien of a party who had no notice of the proceedings and was not a party nor privy to the decree.

Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1876, No. 190. This was a scire facias to revivo and continue the lien of a judgment. In February 1868, Frederick Marshall recovered a judgment against the Pittsburgh and Steubenville Railway Company, for §5956.11, in default of an appearance and affidavit of defence, the action being in assumpsit for work done by the plaintiff’ in the construction of the road of said company. The suit was brought on two orders, drawn by the president and directors of the Pittsburgh and Steubenville Railway Company, which were severally dated September 16th 1856, and accepted by the president of said company on the 12th day of May 1862, together with an acknowledgment of indebtedness, without date, signed by the secretary of tho company. A scire facias issued “ with notice to the Pittsburgh, Cincinnati and St. Louis Railway in accordance with the provisions of the Act of Assembly of April 4th 1862, relative to assignments, &c.,” to continue the lien of the plaintiff’s judgment against the defendant’s road, and to show cause why execution should not he levied thereon, and in February 1869, judgment by default was recovered against the said Pittsburgh, Cincinnati and St. Louis Railway, for the original judgment with interest. On this judgment, and to revive and continue this lien, another scire facias issued in November 1873, and the affidavit, which in substance follows, was filed in this last proceeding in pursuance of an agreement between counsel that it “ should be treated with like efiect as if the same had been filed in proper time under the rules of court in this case.” The affidavit of defence filed by the Pittsburgh, Cincinnati and St.' Louis Railway Company denied any indebtedness to the plaintiff or to the Pittsburgh and Steubenville Railway Company, or any connection with said company, either as vendee, assignee or otherwise, and denied further, that the Pittsburgh and Steubenville Railway Company made any assignment so as to hinder, delay, postpone, endanger or defeat creditors, and averred that the Pittsburgh and Steubenville Railway Company was incorporated March 24th 1849; that on August 1st 1856 (nearly six years prior to the date of plaintiff’s acceptances on which he recovered his judgment) said company executed a mortgage to Thomas McElrath on all its property and franchises; that subsequently said company issued another mortgage on all its property and franchises to the Western Transportation Company; that in 1856, McElrath filed a bill in equity in the Supreme Court to foreclose the mortgage of which he was trustee; that said effort was successful, and a decree entered for the sale of said road. (See McElrath et al. v. Pittsburgh and Steubenville Railway et al., 5 P. F. Smith 189.) That, in accordance with this decree, said road was sold on the 6th of March 1867, and the fund realized therefrom distributed by a master in chancery; that the purchaser and those in whose behalf he purchased, organized the Pan-Handle Railroad, which by subsequent transfers and consolidations with other railways finally became a corporation under the corporate name of the Pittsburgh, Cincinnati and St. Louis Railway Company. It was admitted that the work for which recovery was sought was done in the construction of the Pittsburgh and Steubenville Railway Company. Upon the filing of the above affidavit the plaintiff entered a rule for judgment for want of a sufficient affidavit of defence, assigning as a reason that under the facts, as admitted by said affidavit, the plaintiff is entitled to judgment, the whole question having-been fully considered and recently decided by the Supreme Court of the United States in the case of Edmund Fox v. Jos. H. Seal et al., 22 Wall. 424. See report of same in Pittsburgh Legal Journal of March 10th 1875. On the 1st of July 1876, the court made the rule absolute and entered judgment for the plaintiff for $9113.38, which entry was assigned for error by the company which took this writ.