Mutual Life Insurance ex rel. Scott v. Tenan

Practice, 0■ P. — Affidavit of defense — Executors and administrators. An executor or administrator is not required to file an affidavit of defense in a suit on a contract made by a decedent, where the cause of action arose before the decease of the latter; and therefore no valid judgment may be entered in such a case for want of an affidavit of defense. Seymour v. Hubert, 83 Pa. 346. Appeals — Mortgage—Scire facias — Terre-tenant. On a scire facias sur mortgage against an executor where the terretenant is not served, and a levari facias, issued upon a judgment illegally entered against the defendant for want of an affidavit of defense, is levied upon the land of the terre-tenant, he has a right to appeal to protect Ms title.

Appeal, No. 91, Oct. T., 1898, by defendant, from order of C. P. Washington Co., Nov. T., 1897, No. 57, making absolute a rule for judgment for want of an .affidavit of defense. Scire facias sur mortgage. From the record it appeared that the court entered the following judgment: And now, October 15, 1897, ten days after the return day of the writ in the above case, said writ having been returned by the sheriff served upon George M. Tenan, executor of the-will of Stephen Smith, deceased, and nihil as to M. H. Steven-' son named as terre-tenant in the writ; upon motion of plaintiff’s counsel for judgment for want of an affidavit of defense-(there being no appearances entered in the case), it is ordered that judgment be now entered in favor of James B. Tenan (the-person for whose benefit the writ of scire facias in this case is issued), and against Geo. M. Tenan, executor of the will of Stephen Smith, deceased, for want of an affidavit of defense; the sum due said James B. Tenan to be ascertained by theprothonotary in accordance with the terms of the affidavit of claim now on file, the lien of such judgment and any and all executions issued from- it to be confined to the property of which said Stephen Smith died seized ; and any writ of levari facias issuing from said judgment to be levied only on the real estate referred to in the mortgage from which the writ of scirefacias in this case issued. Error assigned was the judgment of the court, quoting it.