Montgomery v. Heilman

Mr Justice Mercur delivered the opinion of the court, January 24th 1881. It may be conceded that this cause'of action was not within the jurisdiction of a justice of the peace. It is equally true that consent cannot giye jurisdiction so as to prevent objection thereto being made in a future trial of the cause. It however is not obligatory on a party to interpose such objection. In this case, as appears by the record, after the claim was filed the plaintiff in error appeared and at first objected, but afterwards agreed that the case be tried before the justice, and it was so tried. On appeal to the Common Pleas be made no allegation of want of jurisdiction. He put in no plea ; made no affidavit of defence as required by the rules of court, and permitted judgment to be entered against him. Thus by express agreement before the justice, and by his tacit consent afterwards, judgment was regularly entered. After this the court granted a rule to show cause why the judgment should not be stricken off, but subsequently discharged it. The alleged grievance of the plaintiff is that “ the court erred in discharging the rule to show cause, and refusing to strike off the judgment for want of an affidavit of defence.” It is clearly shown by the rule of court and the opinion of the judge that the requisite time had elapsed after the affidavit of claim was filed to entitle the defendant in error to judgment for want of an affidavit of defence. It is urged, however, that if the record showed want of jurisdiction it dispensed with the necessity of putting in such an affidavit. The record did show a waiver of that question and an agreement to try the case on its merits. A [47] view of the whole record, created no presumption, and gave no notice that any objection would be taken to the jurisdiction. As the case then stood with jurisdiction agreed to, the action was subject to the same rule which applies to appeals from the judgment of a justice entered on a claim for money due. The attempt now is not to show want of jurisdiction in a pending action, nor that an affidavit of defence was not necessary, if under the showing of the record the court could entertain jurisdiction. Suppose when judgT ment was moved for the plaintiff in error or his counsel had risen in court and said “ I interpose no objection by reason of want of jurisdiction. I expressly agreed to waive that and that the case should be tried before the justice on its merits and it was so tried. I still adhere to that agreement, and.desire the court to pass upon the case as if there was undoubted jurisdiction,” and the court had thereupon ordered judgment, the case would have been no stronger than it is now. It would have been an oral assertion of what his declaration of record was asserting to the eye of the court. Let us follow it a step further. Suppose he had suffered execution to issue on the judgment, and his property to be sold, could he then be permitted to question the validity of the judgment for want of jurisdiction in the justice? Could he maintain suit against the officer or purchaser resting on alleged w'ant of jurisdiction ? We think he would be estopped from so doing. If then, under any circumstances, he would be estopped from interposing want of jurisdiction to destroy the validity of the judgment, why not under the admitted facts in this case ? With full knowledge of the law, by his express agreement, he induced the defendant in error to incur the costs and expenses of a trial, and the justice and the prothonotary to render their services for which the statute gives them fees. He invited the judgment to be entered against him. Can he thus trifle with two courts, and also escape the application of the doctrine of equitable estoppel ? We think not. He now attempts to avoid the payment of costs which he expressly induced the other party to incur. The judgment was regularly entered. His effort now is to contradict what he said of record before and at the time judgment was taken. He appealed to the sound discretion of the court either to open a judgment regular on its face or to strike it off for a cause shown by the record to be waived. The learned judge was right in refusing to disturb the judgment. Judgment affirmed. Mr. Justice Trunkey filed a dissenting opinion, in which Chief Justice Siiarswood and Mr. Justice Paxson concurred.