Cope's & Kaine's Appeal

1. While the opening of a .judgment to let the defendant into a defence does not destroy its lien, yet if the plaintiif desires to- extend it longer than five years he must issue his scire facias to revive, as prescribed by the Act of March 26th 1827. _ _ 2. After a judgment is reversed it has no vitality to support a continuing lien; when it ceases to be a judgment it ceases to be a lien.

Appeal from the Court of Common Pleas of Fayette county : Of October and November Term 1880, No. 317. Appeal by Eli Cope and D. Kaine from the decree of the Court of Common Pleas of Fayette county, overruling the exceptions of the appellants, and confirming the auditor’s report distributing the proceeds of the sheriff’s sale of the real estate of A. E. Meason. The facts as found by the auditor, William Parshall, Esq., were as follows: “ The fund in court for distribution arose from the sale by the sheriff of the real estate of A. E. Meason, at the suit of Daniel Kaine and Eli Cope, on vend, ex., No. 124, June Term 1876. The sale was made on the 8th of June 1876. Mr. Kaine claims the whole of the fund on this judgment. On the 1st of July 1867, Kaine and Cope took judgment, sec. reg. against Meason for $1148.13. On the first Monday of September following the judgment was opened by the court. The case went on the trial list, and was tried on the 21st of January 1869, and verdict for the plaintiffs for $1251.90, and on the 25th of January 1869, judgment was entered on the verdict and the judgment docket, and remains there still without any note of further proceedings. To this judgment a writ of error was taken, and the judgment was reversed and venire facias de novo awarded. ' The record was returned on the 18th of January 1870. On the 17th of March 1870, the case was again tried, and a verdict for the plaintiffs with leave to the court to enter judgment for the defendant non obstante, &c. On the 22d of September 1870, the court directed judgment to be entered for plaintiffs on payment of jury fee, and on the 23d of September judgment was entered for $500.20. On the 5th of October a writ of error was taken, and on the 21st of January 1871, record was remitted and judgment reversed, &c. On the 16th of March 1871, the case was again-tried, and verdict for plaintiffs for $455, with leave of the court to enter judgment for $803.63, &c. The court held the question reserved from the 16th of March 1871, until the 24th of April 1874, when judgment was directed to be entered for $803.63, with interest from date of verdict and costs. Judgment was entered September 7th 1874, for $803 63. On the 24th of September 1874, another writ of error was taken. On the 15th of March 1875, the record was returned, judgment reversed and venire faeias de novo awarded. On the 11th of May 1875, the case was again tried, and a verdict for plaintiffs for $1851.76, and judgment entered on the verdict May 20th 1875. Each of the foregoing judgments was regularly entered on the judgment docket, and they remain there without any note of their reversal. The several dates of these judgments may be grouped thus: July 1st 1867, judgment for . . ' . • $1148.13 September 1st 1867, opened. January 25th 1869, judgment for . . . 1251.90 January 18th 1870, reversed. September 23d 1870, judgment for .... 500.00 January 21st 1871, reversed. September 7th 1874, judgment for .... 803.63 March 15th 1875, reversed. May 20th 1875, judgment for ..... 1851.76 The foregoing statement shows that an examination of the judgment docket would have given to junior lien creditors of the defendant, Meason, as ready and complete notice of this lien or claim as a sci. fa. to revive could have done if one had been issued. Mr. ICaine insists that under the state of the case no sci. fa. could have issued, and that there was a legal necessity sufficient to take the case out of the operation of the Act of the 26th of March 1827, and cites as authority to show that such a case might exist where the lien might be preserved beyond five years without a sci. fa., the cases of Ebright v. The Bank, 1 Watts 399, and Fulton’s Estate, 1 P. F. Smith 209, 215. If any case could exist where the facts would warrant the court in taking this case out of the operation of the act, it would be difficult to conceive one with stronger points or greater legal necessities than this. It is not necessary to determine here whether, under the circumstances of the case, a sci. fa. to. continue the lien of the opened judgment could at any time have been issued. It seems that such a writ had been issued in the case of Frick’s Appeal, 1 Watts 393, upon a judgment which had been opened and not then determined, and was tacitly, at least, recognised by the Supreme Court .as proper. A judgment of reversal is a judgment of the Supreme Court, 2 Rawle 39. The several judgments entered on the verdicts in this case which were reversed, were no liens at any time. There is a material distinction in this respect between a judgment opened to let the defendant into a defence, and one reversed and set aside by a higher court. If such judgments before reversal were valid liens, there could have been no necessity for the Act of 17 05, preserving the rights of purchasers at sheriff’s sales, where the judgments on which sales were made should be after-wards reversed. It seems clear, therefore, that while the judgments entered on the verdicts might have the effect of giving notice, they could not have the effect of a revival to continue a iien. Since the Act of the 26th of March 1827, a rule tying up the proceedings would not continue the lien longer than five years : Frick’s Appeal, 1 Watts 393; Ebright v. The Bank, Id. 399. The Act of the 26th of March 1827, is explicit in declaring that no order or rule of court or any other process or proceeding thereof shall, have the effect of obviating the necessity of a scire facias to continue the lien: Styer’’s Appeal, 9 Harris 89. Under these authorities, even if the judgment of Kaine and Cope remained a lien after it was opened by the court, it had lost its lien on the 1st of July 1872, and was not again restored until the 20th of May 1876. In the distribution of the fund the judgment of Kaine and Cope must therefore be postponed in favor of the judgments entered prior to the latter date.” Exceptions were filed to this report which the court dismissed when this appeal was taken, it being alleged, inter alia, that the court erred in sustaining the ruling of the auditor that the several verdicts and judgments thereon of Kaine and Cope v. Meason had not the effect of continuing the lien of their judgment, and in further ruling that the judgments entered on said verdicts never were liens.”