Sweigart v. Conrad

Jurisdiction, G. P. — Motion to strike off judgment. The courts are held to a strict scrutiny of the record alone on motions to strike off judgments, and they may not go beyond the record in reaching a decision. Married woman — Judgment note — Practice, G. P. — Motion to open judgment. It is not the present practice to strike off a judgment against a woman upon disclosure of coverture by depositions. Where a judgment regular on its face has been entered up the allegation that the note in question was given by a married woman before the Act of 1887 cannot be raised on a motion to strike off, but should be made the subject of a motion to open the judgment when the question of ratification or re-creation of the debt might be inquired into.

Appeal, No. 167, Oct. T., 1899, by plaiutiff, from order of C. P. Lancaster Co., Execution Docket, Jan. T., 1899, No. 21, making absolute rule to show cause why fi. fa. should not be set aside and judgment stricken off. Rule to show cause why writ of ñ. fa. should not be set aside and judgment stricken off. Before Livingston, P. J. It appears from the record that a judgment note signed by John Conrad and Catharine Conrad, dated March 30, 1882, for $50.00, upon which interest had been paid from time to time, was entered up by leave of court against Catharine Conrad, John Conrad having died. There was evidence taken on the rule to strike off the judgment which disclosed that at the time of the execution of the judgment note Catharine Conrad was a married woman. There was evidence disclosed by the depositions tending to show that defendant after she became discovert and sui juris acknowledged the note, approved and ratified the same, and promised to pay the same unconditionally. The court made the rule absolute, set aside the fi. fa. and ordered judgment to be stricken off. Plaintiff appealed. Errors assigned among others were (1) in making absolute rule to set aside the fi. fa. and satisfy the judgment. (4) In entirely ignoring and not applying plaintiff’s evidence, that after defendant became discovert and sui juris she paid on the note, acknowledged that the note was her note, approved and ratified the same, and promised to pay the same unconditionally. Upon its face the judgment in question is perfectly regular and valid. There was nothing in the record even to indicate that the defendant was a married woman. That fact was disclosed by the testimony taken on the rule to open, .... and quotes the Supreme Court’s rulings, in O’Hara v. Baum, 82 Pa. 416, that a motion to set aside a judgment or strike off a judgment must be on the ground of irregularity appearing on the face of the record. A motion to open is an appeal to the equitable powers of the court to let the defendant into a defense. See, also, Germantown Brewing Co. v. Boot, 162 Pa. 100, same point. North & Co. v. Yorke, 174 Pa. 349, was a case in which the Supreme Court reinstated a judgment against a married woman, which was regular on its face, which had been stricken off by the court below: Hall v. West Chester Publishing Co., 180 Pa. 561. The decisions on the validity of her promise and acts, after she becomes discovert andssui juris of transactions, and promises which, at the time they were made, did not bind ber, are abundant, such as Hemphill v. McClimans, 24 Pa. 367, Kelly v. Eby, 141 Pa. 176, Brown v. Bennet, 75 Pa. 420, Trout v. McDonald, 83 Pa. 144, and Brooks v. Merchants’ Bank, 125 Pa. 394. Even a married woman’s judgment is now presumably valid: Stephan v. Hudock, 4 Pa. Superior Ct. 474. This case must be considered and decided as of the time when the said note was made (alleged to have been signed), on March 30, 1882, by the appellee. Of course, a judgment entered upon it was a nullity, as against her, for she could give no authority to enter it. Whenever, therefore, such a judgment has been'entered, the courts have uniformly, on motion, ordered it be stricken off from the record: Read v. Jewson, cited in Caudel v. Shaw, 4 T. R. 361; Dorrance v. Scott, 3 Whart. 309; Caldwell v. Walters, 18 Pa. 79. Nor does the Act of April 11, 1848, P. L. 536, remove the wife’s disability resulting from the marriage relation to enter into such a contract. A married woman cannot be made liable for necessaries on proof of a joint contract by husband and wife, nor by her subsequent promise to pay. A subsequent promise to pay for necessaries procured by the husband, for which he alone is liable, is not within the intention of the law; it would be but a promise to pay the debt of another, and therefore nudum pactum. The essence of her liability under the act for necessaries is, that the creditor furnishes them on her credit: Berger v. Clark, 79 Pa. 340.