McMurray's Heirs v. City of Erie

The opinion of the court was delivered, January 5th 1869, by Sharswood, J. Under the provisions of the Act of Assembly of April 14th 1863, entitled “ A further supplement to the several acts incorporating the city of Erie,” Pamph. L. 401, a judgment was entered by the prothonotary in the court below in favor of the city of Erie on a claim for a sidewalk improvement tax against an inlot property described and numbered. It appears by the record that a rule was granted to show cause why the judgment should not be opened. The court made the rule absolute, and “ defendant let into a defence only as to the quality and value of the work done.” That the court had the power to prescribe terms upon the opening of the judgment has not been and cannot for a moment be disputed: Braddee v. Brownfield, 2 W. & S. 279; Bailey v. Clayton, 8 Harris 295. The parties interested in the property against which the judgment was entered as a lien obtained this order and accepted its terms. They went to trial on the special issue thus awarded, and succeeded in reducing the. amount of the claim considerably. If the court had a right to direct that the issue should be special, and to impose terms, they also of necessity had a right to confine the evidence to the issue, [226] and thus to carry out their own order. Indeed they were hound to do so. The plaintiffs would have come unprepared to meet any other question. In Gray v. Brackenridge, 2 Penna. R. 75, it was held that on an issue joined to ascertain the amount due upon a judgment, given as security, the court had a right to order that the plaintiff’s account or statement of the amount due to him shall be considered as primd facie evidence of his claim; and it is not error to instruct the jury that the burden of proof falls upon the defendant to show payment of the debt, or why it should not be paid. It is very plain, then, that on the trial of this issue of fact before .the jury, the court below committed no error in rejecting the evidence which forms the matter of the first assignment, and in refusing to affirm the four points presented which are complained of in the remaining assignments. They relate entirely to the regularity and validity of the judgment which had been opened. The only issues before the jury were “ as to the quality and value of the work done.” Ho error has been assigned in the judgment, though the argument has been mainly, if not altogether, directed to the point made before the court below, that the judgment itself was unauthorized and void. It is contended that under the Act of 1868 there were certain preliminary things to be done before the judgment could be entered; as that an ordinance must be passed by the corporation plaintiffs and duly recorded, and notice properly given to the owners before the work was begun. It may be assumed that these were necessary prerequisites to a valid judgment. But the law did not require that the.evidence of them or even an averment should form a part of the judgment itself. On the face of this record the presumption must be in favor of it that all things necessary were regularly done. If there was an assignment of error, it must be of an error of fact dehors the record. In effect it would be that the prothonotary ha.d no warrant to enter the judgment. In general it is settled that on a writ of error, error of fact as well as error of law may be assigned: Silver v. Shelback, 1 Dall. 165; Moore v. McEwen, 5 S. & R. 873; Martin v. Tors, 17 S. & R. 364; Knox v. Flack, 10 Harris 338; Banning v. Taylor, 12 Harris 292. However, in Watson v. Mercer, 17 S. & R. 343, this court decided that the Supreme Court, when sitting out of the county of Philadelphia, cannot entertain a writ of error for error in fact. The ground of this determination was that the law had given the court no jury to try matters of fact; and it was said that to send them for trial to the Court of Common Pleas of the county from which the record came would seem to be without any precedent existing in this state or anywhere else. This case has never been overruled that I can find, although Lewis, C. J., does not seem to have adverted to it when he said in Knox v. Flack, a case in the Western dis [227] trict, “ We can, if necessary, order an issue to the court below to try the fact.” But there is another reason why the plaintiffs in error cannot avail themselves of this objection to the judgment. Error in fact and error in law cannot be assigned together, because they are distinct things and require different trials. The defendants in error could demur for duplicity: 2 Bacon’s Abr., tit. JError, %. So, after an error of law has been assigned and the judgment affirmed, no error in fact can afterward be assigned on any other proceeding as in a writ of error coram nolis, in the court below: Burleigh v. Harris, 2 Strange 975. The ground for this ruling was entirely satisfactory; that as error in fact and law cannot be both assigned on one writ, there is no reason to do it by a more dilatory method. Since, therefore, on the errors in law assigned on this writ the judgment must be affirmed, it would seem to follow that the plaintiffs are precluded from taking advantage of any error in fact. Judgment affirmed.