Gibson v. Simmons

An order opening a judgment entered upon a soire facias to revive and staying proceedings upon an execution issued, to let the defendant into a defence, rests in the sound discretion of the court below, and such order is not reviewable on appeal to the Supreme Court.

APPEAL BY PLAINTIFF FROM THE COURT OF COMMON PLEAS NO. 3 OF PHILADELPHIA. COUNTY. No. 110 January Term 1890, Sup. Ct.; court below, No. 35 June Term 1874, C. P. No. 3. On May 3, 1874, Eliza Gibson brought case against Michael Simmons, and on October 10, 1874, judgment was entered in favor of the plaintiff for want of an affidavit of defence, and sum due liquidated at $127.80. On November 22, 1879, after writs of scire facias and alias scire facias were returned nihil habet, judgment of revival of said judgment was entered, and the sum due liquidated at $167.12. On August 31, 1889, a scire facias to revive the judgment again was issued, which was returned “made known,” and on September 21, 1889, judgment of revival was entered for want of an affidavit of defence, and sum due liquidated at $265.72. A fieri facias having issued on September 25,1889, whereon a levy was made upon defendant’s property and notice of inquisition given, the defendant on October 8, 1889, presented a petition in which he denied any indebtedness to the plaintiff upon the original cause of action, and averred that on the return day of the scire facias issued August 31st, he appeared at the court house and “ waited for some further notice in said case,” and, in ignorance of his duty to file an affidavit of defence, supposed that by so appearing he had done all he was required to do, etc., etc. Upon this petition, a rule was granted to show cause why the judgment should not be opened, etc., the proceedings on the writ of fieri facias to stay, etc., which rule on October 12, 1889, was made absolute. Thereupon, the plaintiff took this appeal, specifying that the court erred: 1. “ In opening the judgment more than fourteen years after the end of the term at which it was rendered.” 2. “ In staying the writ of fieri facias issued on said judgment.”