Lamb's Appeal

Mr, Justice Mercuu delivered the opinion of the court, May 7th 1879. This is an appeal from a decision of the court refusing to open a series of judgments on the ground of usury. The original judgment was entered to December Term 1866. It was first revived by amicable scire facias to February Term 1870, and again in like manner to February Term 1875. Prior to the Act of 4th April 1877, it was well settled that the question of opening a judgment rested in the discretion of the court in which it was rendered. No appeal from its action would lie to this court; nor could we review it on writ of error, unless the opening in the particular case was in excess of the power of the court: Catkin v. Robinson, 2 Watts 373. A refusal to open is simply a refusal to disturb' the judgment, and is not the exercise of an illegal power: Henry v. Brothers, 12 Wright 70; McClelland v. Pomeroy, 25 P. F. Smith 410. It is claimed by the counsel for the appellant that the right of appeal is given by said Act of 4th April. This act declares that “ in all cases of application made to any court of this Commonwealth to have any judgment, which has.'been entered by virtue of a warrant of attorney or on judgment note opened and defendant or defendants let into a defence, the party or parties aggrieved by the decision of the court thereon, may have the same reviewed in the Supreme Court by appeal, in like manner and proceedings as equity cases are now appealed.” Thus this act authorizes an appeal only in case the judgment has been entered by virtue of a warrant of attorney, or by virtue of .a note in which judgment is confessed, under the 28th section of the Act of 24th February 1806: 1 Purd. Dig. 825, pi. 32. In either case the judgment is entered without notice to the defendant, and without his having any opportunity of being heard. A judgment of revival, entered by agreement of parties, called an amicable scire facias, is not entered by virtue of a warrant of attorney authorizing any person to appear and confess judgment nor upon a judgment note. It is a power or authority to the prothonotary to enter judgment, but no warrant to confess it. As was well said by Mr. Chief Justice Tilghman, in Cook v. Gilbert, 8 S. & R. 568, in speaking of the power under which the prothonotary acted, “ it is a mistake to call this a warrant of attorney.” It is a confession of judgment by the party defendant himself, without substituting any person to confess it for him. From a refusal to open either of the revived judgments, it is very clear the Act of Assembly gives no appeal. The remaining question is whether the refusal to open the original judgment after the revivals comes within the true meaning of the act ? Judgment of revival on a writ of scire facias post annum et diem not only continues a former lien, but may also create a new one on lands not before bound thereby. It has all the conclusive [410] effect of an original judgment in determining the -amount due: Irwin v. Nixon, 1 Jones 426. For many purposes, it has an effect separate from the original. Thus the reversal of a judgment entered on a scire facias does not affect the original judgment, yet a reversal of the original judgment is a reversal of the revived one which was based upon it: Ranck et al. v. Becker, 12 S. & R. 426. As a judgment is the end of the law in settling a controversy, there is no reason why one of revival on the agreement of the parties shall not be as conclusive as one taken on a writ of scire facias, regularly issued, unless impeached for fraud. As was said by the present Chief Justice in Hopkins v. West, 2 Norris 109, “had the judgment confessed by the plaintiff below, in favor of the defendants, been an adversary judgment upon the verdict of a juiy, it cannot be questioned but that it would have been conclusive as between the parties, even though it should manifestly appear that it included usurious interest. There is no difference in legal effect between a judgment confessed, or for want of an appearance or plea, and a judgment on the verdict of a jury.” It is true this case recognises the power of a court to open a judgment in a proper case; but the power is not the question which we are now considering. The question is, whether an appeal lies for refusing to exercise that power. That case was one of usury, and the opinion proceeds to say “ no substantial difference can be shown between this and any other illegality entering into its consideration.” It is well settled that the mere payment of interest in excess of six per cent, since the Act of 28th May 1858, is not necessarily fraudulent even as to creditors: Good v. Grant, 26 P. F. Smith 52; Bank v. Roseberry, 31 Id. 309; Appeal of Second National Bank of Titusville, 4 Norris 528. Sections 1 and 3 of the Act of 26th March 1827, Purd. Dig. 820, pi. 5 and 6, expressly authorize judgments to be revived by agreement of the parties, and give to such revived judgment the same effect for all purposes of lien as if taken on a Avrit of scire facias sued out. The courts have favored the practice of reviving judgments in this manner, by giving full effect to the agreement. Hence a judgment confessed in an amicable scire facias upon a supposed former judgment, which did not legally exist, was held valid against encumbrances, and all others claiming under the defendant by title subsequent to the confession : Ramsay v. Linn, 2 Rawle 229. So a revival by agreement of the parties is valid, although several original judgments are therein consolidated, and one judgment entered for the amount due on all: Reed’s Appeal, 7 Barr 65. The statute which authorizes an appeal, as in equity, on the refusal of a court to open a judgment entered by virtue of a warrant of attorney or on a judgment note, manifestly intended a judgment remaining in that form unchanged by subsequent judicial proceedings. It applied to a case in which the defendant never [411] had his day in court. It was not intended to disturb a judgment ratified and confirmed by sueessive revivals, with a full knowledge of the original consideration. A party may be estopped in equity as well as at law. It would be a strange application of equitable principles to hold, that no appeal will lie for a refusal to open the revived judgments, yet that it will to. a refusal to open the original judgment on which the later judgments rest. We must not lose sight of the fact, that the Act of the 4th of April 1877, makes no special reference to usury. It is general in its terms, and we must therefore consider it in its application to all cases in which the equitable powers of the court are invoked under the act. The case of Walter v. Breisch, 5 Norris 457, is not in conflict with the conclusion we have reached. It is true that was a ease in which a judgment had once been revived, and the court on proof of the payment of interest at ■ the rate of 36 per cent, per annum, did open the original judgment. We affirmed the discretionary power of the court so to do. Without any aid from the Act of 4th April 1877, we could have held that we would not review the action of the court at that stage of the proceeding, and have affirmed it. Peoples’ Fire Insurance Co. v. Hartshorne et al., 3 Norris 453. The present case presents no such gross imposition. The court required the appellee to remit so much of the interest as it thought had been improperly taken. Whether it reached the true amount'or gave a correct reason therefor we will not now consider. We merely decide that it exercised a discretion, which under all the facts and circumstances, the statute in question does not authorize us to review. Order discharging the rule affirmed, and appeal quashed.