Miller v. Duvall

[162] Opinion, Mr. Justice Paxson : SCOTT’S APPEAL. This was an appeal by the use-plaintiff from the decree of the court below, opening the judgment No. 134 May Term 1885, and awarding an issue. The issue was tried in the court below, with the result of a verdict materially reducing the amount of the judgment. The case now comes up with an appeal from the order opening the judgment, and a writ of error to the judgment in the feigned issue. This is in accordance with the proper practice: English’s Appeal, 119 Pa. 533; Citizen’s B. & L. Ass’n v. Hoagland, 87 Pa. 326. The order of court opening the judgment is assigned for error. If this point is well taken the whole proceeding must be reversed, including the trial of the issue: English’s Appeal, supra. The original judgment was No. 5 of May Term 1879, in which James M. Miller obtained a judgment, by confession upon a warrant of attorney, against Jacob Duvall and Alexander Duvall, for $495. On March 9, 1885, Miller, in consideration of $520, then paid him by A. D. Scott, the use-plaintiff, assigned the judgment to Scott. It also appeared that Scott had bought the judgment upon the faith of a certificate of no defence signed by Jacob Duvall. Scott then caused the judgment to be revived against Jacob Duvall, the other defendant, Alexander Duvall, being then deceased, and a return of mortuus est as to him. After the entry of judgment upon the scire facias, No. 134 May Term 1885, for $692.57, Jacob Duvall presented his petition to the court below, praying that both the original judgment and the judgment upon the .scire facias be opened, and that he be let into a defence. His petition set forth the history of the indebtedness which resulted in the original judgment; . averred that this judgment contained usury; that he had not received credit for the payment of $212.50 on account of principal; that the assignment by Miller to Scott was merely colorable; and that no real interest in said judgment passed, or was intended to pass, by the same to said Scott, and that the same is still owned by the said James M. Miller. Whatever defence Duvall may have had against Miller, he is [163] estopped by Ms certificate of no defence from setting it up against Scott, the use-plaintiff, unless, as alleged, the assignment was merely colorable. If Scott purchased the judgment bona fide and upon the faith of the certificate, there is an end of any defence by Duval upon the ground of usury, or for any other reason. Hence the question whether the assignment was colorable was the vital point in the case. If it was a mere sham Duvall had the right to set it up either against Miller or Scott. The only testimony in the case in support of this allegation in the petition, is the testimony of Duvall himself. I quote his testimony in full upon this point: Q. In your petition you say that you aver, believe, and expect to be able to prove that the assignment by Scott to Miller was merely colorable, and that no real interest in said judgment passed, or was intended to pass, by the same to A. D. Scott; and that said judgment is still owned by the said James M. Miller. A. I did believe it at the time that was drawn up. Q. State any facts within your own knowledge that led you to make that assertion. A. Just; because the way Miller talked to me. He always told me he had to do this, and did not tell me anything else, only that he’d done it. Q. That is the reason you made that assertion in this petition? A. Yes, sir; the way he talked to me I thought he still held the notes yet and owned it. Q. Any other reason than that ? A. I don’t mind just now. This is all there is in the case. On the other hand, Mr. Scott testified that he bought the judgment upon the faith of the certificate, and paid for it in cash the sum of 1520. He is corroborated by Miller, and they both deny everything that Duvall testified to that is of any importance touching the consideration and good faith of the transfer. It will thus be seen that the judgment was opened, resulting in an expensive jury trial, without so much as a scintilla of evidence to support the material averments of the petition. It is hardly necessary for us to say that this was error. The decree is reversed at the costs of the appellee, and the petition dismissed. MILLER v. DUVALL. We have just decided in Scott’s Appeal that it was error to [164] open the judgment. It follows that the trial of the issue was an abortive proceeding: English’s Appeal, 119 Pa. 538. Aside from this, the case went to the jury upon substantially the same testimony as was taken upon the rule to open the judgment. There was not a scintilla of proof to show that the assignment of the judgment was collusive. Judgment reversed.