Jones v. Dilworth

The opinion of the court was delivered, January 3d 1870, by Agnew, J. — The refusal of the court below to open the judgment, or set aside the liquidation, is not a subject of error where the decision depends on extrinsic facts, which must be determined on the evidence. There is no bill of exception to bring up the evidence in such a case: Bunce v. Wightman, 5 Casey 335; Kalbach v. Fisher, 1 Rawle 323; Righter v. Rittenhouse, 3 Id. 273; Eldred v. Hazlett, 2 Wright 17. This case bears no resemblance to Knox v. Flack, 10 Harris 337, where the validity of the warrant of attorney itself was brought into dispute by the minority [449] of the defendant in the judgment. There the error could be brought upon the record by audita querela, or a writ of error coram nolis or volis, which, in this state, are supplied by the more summary proceeding upon motion. See also Banning v. Taylor, 12 Harris 289. The question whether the plaintiff could issue execution without a scire facias on the judgment, or a motion to the court for leave to issue the execution, is more important, but is determined by Reynolds v. Lowry, 6 Barr 465, and McCann v. Farley, 2 Casey 173, decisions directly in point; the indemnity character of the condition of the bond being considered as making no difference where the judgment is entered for a penalty under a warrant of attorney. The party in issuing execution upon a judgment entered by warrant of attorney, proceeds at his peril; and if he issues his writ when nothing is due, or for too much, he subjects himself to the summary correction of the court to set it aside or reduce it, and payment of costs for his untrue demand. To those cases we may add Chambers v. Harger, 6 Harris 15. In the last, Gibson, C. J., intimated his opinion that where there is uncertainty as to when the money falls due, it will be necessary to move the court for execution. This was not the point decided, was a dictum only, and is scarcely reconcilable with Reynolds v. Lowry and McCann v. Farley. But whether or not, it is here immaterial, as the warrant of attorney in this case expressly provided that execution might issue forthwith on a failure to comply with the condition. As to the scire facias, it is well settled that it does not apply to judgments entered by confession under a warrant of attorney, hut only to actions and judgments thereon by default, confession or on demurrer, under the statute of 8 & 9 William III., cap. 11, § 8, Robert’s Digest 142; Longstreth v. Gray, 1 Watts 60; Skidmore v. Bradford, 4 Barr 296. Judgment affirmed.