Feagley v. Norbeck

Opinion, Mr. Justice Sterrett : The subject of complaint in the only assignment of error on this record is the order of court setting aside the alias fieri facias, No. 8 of January Term 1889. It is claimed that the only remedy the plaintiff had was an appeal under the act of April 4, 1877, P. L. 52; but that is a mistake. The act referred to provides for an appeal to this court by parties aggrieved by the action of court on applications to open judgments entered by warrant of attorney, etc. A writ of error is the proper remedy for such action of the court as is here complained of. The court below had before it at the same time two distinct rules, one to open the judgment, and the other to set aside the alias fieri facias. Both were made absolute, but no appeal having been taken from the former, it is not before us. The latter, however, is properly here on the writ of error. An order setting aside an execu [243] tion is in the nature of a final judgment, to which a writ of error lies: Pontius v. Nesbit, 40 Pa. 309. The only remaining question is whether there was anything to warrant the action complained of. The court appears to have found as a fact that the execution was issued in direct violation of an express agreement not to do so, except in a certain contingency which liad not then happened. The agreement is in writing, signed by the plaintiff at the time he received from defendants the bond on which the judgment above referred to was entered; and, as recited in the opinion of the court below, reads as follows: “Whereas, Jacob H. Norbeck and Jacob Miley have executed this day a judgment as collateral security to John Feagley to secure him against all liability as indorser or surety for the said Norbeck & Miley, payable one day after date; now it is agreed, that for and in consideration of one dollar that the said John Feagley will not issue execution upon said judgment, unless it should become necessary by reason of delay, or on account of judgment being about to be obtained and execution issued by some other party against the said Norbeck & Miley. John Feagley.” As above stated, the court found that the execution in question was issued in violation of the agreement. The plaintiff has failed to satisfy us that there was any error in that conclusion. The docket entries show that depositions were taken, to be used on hearing of the rules, but we have not been furnished with them. In the absence of anything to the contrary, we must assume that the finding of the learned judge is correct. If so, the execution was rightly set aside. Order of court setting aside alias fieri facias is affirmed, with costs to be paid by plaintiff.