Appeal of the First National Bank

1. A Judgment on appeal from the award of arbitrators under the Compulsory Arbitration Act, entered within five years of the time of the award, continues the lien thereof for five years, and has priority over judgments entered between the time of the filing of the award, and the entry of final judgment. 3. It is unnecessary, in such case, after the expiration of five years from the filing of the original award, to revive the same by scire facias in order to give the final judgment priority oí lien over intermediate judgments entered between the time of the filing of the award and the entry of final judgment. 3. It is not necessary, in order to secure priority of lien to such final judgment, over such intermediate judgment, that the fact should be noted in the judgment docket that said final judgment is based on such award.

Appeal from the Court of Common Pleas of Northumberland county : Of January Term 1882, No 177. Appeal of the First National Bank of Northumberland from a decree of said court, dismissing its exceptions to and confirming the report of the auditor appointed to distribute the proceeds of a sheriff’s sale of real estate. The real estate of Amos E. ILapp & Co., was sold at sheriff’s sale on February 2d 1881, under executions against said firm. The fund was- paid into court, and -the matter was referred to "William A. Sober, Esq., to report distribution. Before him the fund was claimed, on the one hand, by John B. Packer and others, judgment creditors, and, on the other hand, by the First National Bank of Northumberland, also judgment creditors, each claiming that their respective judgments were entitled to priority in the. distribution. There was no dispute as to the material facts, which were as follows: In 1874, the First National Bank brought four separate actions against Amos E. Kapp & Co., each of which was referred to arbitrators under a compulsory rule of reference, and in each of which an award was filed in favor of the bank, in 1874, which awards became liens on the defendants’ real estate. The defendants appealed from each of said awards, in 1874. Pending these appeals, John B. Packer and others obtained the several judgments against Amos E. Kapp & Co., upon which (or revivals of which) they claimed the fund. The bank never revived the lien of their said awards, by scire facias or by agreement. Subsequently to the entry of the said judgments in favor of John B. Packer and others, but within five years from the date of their awards, the bank recovered final judgments in their favor upon the appeals from said awards. These judgments were entered by the prothonotary upon the judgment index, in the usual manner, as of the dates when they were respectively obtained, no entry, note or memorandum being made on the index to show that said judgments were upon appeals from the prior awards. The said sheriff’s sale, of February 2d 1881, was within five years from the dates of said judgments, but more than five years after the dates of the original awards. Packer et al. claimed that the awards, not having been revived according to law, had lost their lien prior to and at the time of the sheriff’s sale; and that their judgments, being prior in date to the bank’s judgments, were prior in lien. The bank claimed that the effect of the judgments on the appeals, during the life of the awards, was to merge the awards, thereby preserving and continuing the bank’s priority of lien, as against the Packer judgments. The auditor, in a learned and elaborate report, held that an award not revived by scire facias or agreement loses its lien at the expiration of five years ; and that such lien is not preserved or continued beyond said period by the pendency of an appeal therefrom and the entry of a judgment affirming the award within said period. In his report the auditor said, inter alia: “ Whatever the difficulties of the question as to the limitation of the lien of an award, or of means required to continue it for a longer period than five years from the entry when (in 1835) Dietrich’s Appeal (4 Watts 208) was decided, must now surely be considered settled, if a positive legislative enactment can have the effect of settling a question of disputed law, or of prescribing a rule of right and property differing somewhat from those before supposed to be established. The supposed want of power to issue a scire facias to revive and continue the lien of an award, is by this remedied and supplied; in so many words it declares the pendency of an appeal shall be no impediment. By its terms no contingency of the result of the appeal, nor any indefinite period of duration, shall attend the lien of an award, any more than that of a judgment. The invidious distinctions between awards and judgments, are by this swept away..... “ That the law contemplates the lien of an award may be lost, and must be, if its provisions are not complied with, in the event of the pendency and prosecution of an appeal, is clear from its letter, for it positively declares, £ no award of arbitrations .... shall continue to be a lien .... for a longer period than five years .... notwithstanding any appeal .... unless revived by scire facias,’ &c. So by the Acts of 1810 and 1836 (the arbitration law) it is declared that an award of arbitrators, shall have the effect of a judgment, and upon entry, be a lien on laud, and by the Act of 1840 (a supplement to the Acts of 1798 and 1827, limiting the lien of judgments) such award of arbitrators, like a judgment, shall have the powers and susceptibilities to have lost or perpetuated the lien thereof, just as a judgment might have lost or perpetuated its own lien. The proceedings on appeal have nothing whatever to do with the lien of the award, they can neither save nor destroy it. It is self-sustaining for five years from creation, by entry, and no longer. Nothing but a defeat of the party in whose favor an award stands, can affect the lien; and nothing but a revival according to law can perpetuate it. Of course, a defeat of the claim on wffiich the award is founded, on apjaeal or otherwise, would abate its lien, just as a defeat of the consideration of a judgment, on an order opening for defense, would abate the lien of the judgment itSelf, because the lien of neither would then have anything to support them. But the lien of one, as well as the other, would continue for five years, or until such defeat became an established fact, but not longer without revival, notwithstanding a trial on appeal, or on judgment opened, or other proceedings pending. For by the third section of the Act 26th March 1827, ‘ no order or rule of court, or any other process or proceeding thereof, shall have the effect of obviating the necessity of the revival in manner herein prescribed, of any judgment whatever.’ And by the first section of the Act of 1840, passed as an express supplement to the Acts of 1798 and 1827,£ no award now entered or hereafter to be entered, shall continue a lien . . . for a longer period than five years . . . notwithstanding any appeal .... unless revived within that period, according to the provisions of the Act to which this is a supplement, and the supplement to the same, passed March 26th 1827.’ Indeed, putting the case where the Acts of Assembly leave it, it is difficult to distinguish between the effect and consequences, as to lien, of an award appealed from, and of a judgment opened for defence; the lien of neither is affected, but of both continues, the one notwithstanding the appeal, and the other notwithstanding the order opening; but both must be revived within five years from date of entry, if the lien is to be continued beyond that period, notwithstanding any order or rule of court, or any other process or proceeding thereof. Can it be doubted, now, that the full strictness and requirements of the Acts of 1798 and 1827, as these relate to the limitation of the lien of judgments, and the methods by which such lien may be continued, since the Act of 1840, apply equally to awards of arbitration'{ The sole end of all this legislation was, the limitation of the lien of judgments and awards, to prescribe the single methods by which they could be perpetuated as liens oh land, and to exclude every other possible, as well as known, method than such as were therein prescribed.” The auditor therefore awarded payment of the judgments to Packer et al., which exhausted the fund. Exceptions filed by the First National Bank to the Auditor’s report were dismissed by the court, Hookeeeller, P. J., saying, inter alia, in an opinion filed : “ In addition to the reasons stated by the learned auditor, the Legislature had an important object in view at the time of the passage of the Acts of 1798, 1827 and 1840, and that was, that purchasers and lien creditors should not be required to search the lien or judgment docket for liens created by judgments or awards for more than five years prior to the time of sale or entry of liens. They are not required to search further back than five years. The judgment or lién docket is their guide. They need not look beyond that. It regulates the standing of the lien creditors. By the Act of the 29th March 1827, the prothonotary is to prepare and keep a docket, to be called the judgment docket, and into which is to be copied tlie entry of every judgment and every award of arbitrators, immediately after the same shall have been entered, such entries so to be made in the said judgment docket, shall be so made that one shall follow the other in the order of time in which the said judgments and awards shall have been rendered, entered or filed, and the entries in each case in said judgment docket shall particularly state and set forth the names of the parties, the term and number of the case, and the date, and in case the judgment shall be for a sum certain, the amount of the judgment or award ; and when any judgment shall be revived by scire facias or otherwise, or when any execution shall issue in any case, a note thereof shall be made in the proper judgment docket, at the place where the other entries in such case may have beeir made. 11 In looking at the judgments in question in this case as they appear in tlie judgment docket, we have the following entry as a sample : “ Now a party is not required to search the appearance docket; and, certainly, there is nothing on the judgment docket in these cases to induce or require a purchaser or lien creditor to look back for more than five years to discover awards of arbitrators or other proceedings by which the liens commenced at any other periods. When a scire facias is issued to revive a lien or judgment entered on a scire facias, amicable or otherwise, the judgment docket shows the fact, and a party is therefore notified that it is a continuation of a former lien, but not so when a judgment is entered on a verdict or by consent in court. “ If a party had been searching for liens on land of these defendants he would not have looked back more than five years for judgments or awards, and in that case he would not have found the awards in question. There is nothing on the judgment docket, within five years, that in any way refers to them. That in questions of distribution the judgment or lien docket regulates the standing of the lien creditors, and the sums to be paid to them, is not doubted. “ Looking at the whole case, I have come to the conclusion that the auditor was right, and that the proceeds of the sale must be distributed among the lien creditors, as they stand on the judgment or lien docket, and taking that as the only and true evidence as to their standing, there can be no question or doubt as to their rights. “ The exceptions are dismissed and the report of the auditor is confirmed.” ■ The First National Bank thereupon took this appeal, assigning for error the dismissing of their exceptions and the decree of distribution as reported by the auditor and confirmed by the court.