France v. Ruddiman

Pick Ctjeiam: The writ of error in this case was taken to the judgment on the scire facias on the mortgage. The depositions taken under the rule to show cause why that judgment should not be opened, are no part of the record in the proceeding by scire facias. We cannot consider them, because they are not before us by bill of exception or in any other manner. If Mrs. Giasby were living and did not choose to plead her former coverture in defence against the mortgage, judgment would be entered against her on the scire facias, notwithstanding the fact of such coverture. She had ample opportunity to exercise this personal privilege at any time between 1878, the date of the mortgage, and 1884, the time of her death, but did not choose to do so. We see no reason for departing from our numerous well considered decisions to the effect that a judgment cannot be stricken off for irregularity unless it appear upon the record, [260] and that depositions taken in the court below upon a rule to open a judgment cannot be considered here. Especially is this the case when the person who seeks to set up the alleged coverture of the mortgagor is a total stranger to the mortgage, and proposes to assert a purely personal right of the mortgagor, which she, having ample opportunity to do so, never saw fit to exercise. - Judgment affirmed. ■