Barber v. Chandler

The opinion of the court was delivered by Chambers, J. There is presented in this case to the court for review, only the issue formed in the court below in a scire facias to revive a judgment of the plaintiff against the defendant in the same court, to which, with other pleas, was pleaded nul tiel record, on which judgment was entered for defendant, and which is now assigned for error. The judgment of the plaintiff against the defendant, as described in the scire facias from the same court’s record, was exhibited. This judgment in the Court of Common Pleas was entered by transcript from the docket of Samuel Davidson, justice of the peace of Bradford county. Being filed in pursuance of the Act of Assembly, it was as a judgment, a lien on the [50] real estate of the defendant, and by intendment of law, was, from the time of the entry, a judgment of the Court of Common Pleas for the purpose of obtaining satisfaction out of the real estate of defendant; if necessary. There being a judgment in conformity to the allegation in the writ, why was not the judgment in affirmance of it ? It is alleged that the judgment before the justice was void, because it was confessed by the agent of the defendant on the day before the summons was legally returnable. The summons was issued on the 10th, and was returnable on the 14th of May, on which last day the parties appeared ; note of defendant was given in evidence and judgment confessed by the agent of the defendant for the amount, and on the day following the transcript is filed as recited. By the Act of Assembly directing the institution of suit before a justice by summons, the same is to be returnable in not less than five days from the date; as the computation of the time, by the weight of authority, is to be made from an act done, viz. the issuing of the summons, the day of issuing as well as of return are to be counted: Rex v. Adderly, Doug. 464; Castle v. Burdet, 3 Term Rep. 623; Glassington v. Rawlins, 3 East 497; Burrall v. Du Blois, 2 Dal. 229 ; Lane v. Shreiner, 1 Bin. 292; Lord v. Graham, 4 W. C. C. R. 232; 9 Cranch 104 ; 2 Br. 18. A more liberal construction has been allowed in excluding the day in the case of an appeal from an award, Sims v. Hampton, 1 Ser. & R. 412; also in computing the time of an appeal from a decision of the Common Pleas, in Goswiler’s Estate, 3 Penn. R. 200. The time required was given when the defendant appeared by agent who confessed the judgment. A party before a justice is allowed to appear by an agent. There is no form of law constituting such agency. The justice is the judge of the authority; and, after the judgment of the justice, it is to be taken prima facie that the agent had authority to represent the principal. If the notice given by the summons had been one day short of the time required by the law, it clearly might have been waived by the defendant, who was competent to appear at the justice’s office and confess judgment, and we see no good reason why his constituted and accredited agent should not be allowed to do the same to avoid costs or further litigation. A justice may give judgment before the return day of his process, if the parties voluntarily appear and proceed to a hearing. Buckmyer v. Dubs, 5 Bin. 29. If the judgment before the justice was improperly obtained and was irregular and voidable, the defendant’s remedy was to have had it reviewed directly by the justice, or by application to the court to set it aside. This is not to be done in a proceeding by scire facias, founded on it as a subsisting judgment, Avhich the record of the court proves it to be. The judgment of the court below on the issue of nul tiel record, is reversed, and on the same, judgment is entered for the plaintiff, and record remanded to the court below for further prosecution.