Ogle v. Baker

Opinion, Mr. Justice McCollum: On December 22,1886, a judgment was entered in the Court of Common Pleas of Fayette county, in favor of the appellant and against the appellee, for $500, with interest thereon from the 16th of March preceding. This judgment was entered upon and by virtue of a warrant of attorney contained in a note purporting to be executed by the appellee. An attachment-execution was issued upon it, which was duly served upon the [384] defendant therein, and the National Bank of Fayette county was summoned as garnishee. In due course of law, judgment was obtained against the garnishee for $377, and an execution was issued for its collection. The bank paid the amount thereof to the sheriff, who paid it to the appellant. In April, 1887, this suit was brought by the appellee to recover the amount so paid, and the substance of her claim is that the note on which the original judgment was entered was a forgery, and that she did not appear in answer to the attachment, because the appellant told her that she need not, and that he would attend to it for her. The judgment and the attachment proceedings founded upon it remain of record, unimpeached, and the question is, whether, while they so remain, an action for the recovery of the money collected and paid by virtue of them can be maintained. The general rule is that money collected or paid upon execution cannot be recovered back, unless the judgment on which the writ issued is first vacated or reversed: Federal Ins. Co. v. Robinson, 82 Pa. 357; Travelers Ins. Co. v. Heath, 95 Pa. 333. The reason of the rule is well stated by Mr. Justice SharsWOOD, in Federal Ins. Co. v. Robinson, supra, as follows: “ An execution is the end of the law. To permit money so collected or paid to be reclaimed in a new suit, would lead to indefinite and endless litigation. If such suit could be maintained, then another might be brought to recover thé money paid on the judgment and execution in it, and so on ad infinitum.” In Tarbox v. Hays, 6 W. 398, the plaintiffs brought an action of replevin to recover certain property which the defendant had purchased at a constable’s sale on an execution issued on a judgment which he held against them. It was alleged by the plaintiffs that the judgment was procured by fraud and without notice to them, but it was ruled by this court that the defendants therein could not question it collaterally. A judgment or decree procured through the fraud and collusion of the parties to it, for the purpose of defrauding a third person, may be attacked by such person in a collateral proceeding, because he has no standing to appeal from it, or to require that it be vacated or reversed. A party however, who alleges that a judgment has been obtained against him bj' fraud, may assail it directly, by appeal from or motion to open it, but he cannot [385] impeach it in an action to recover the money collected by regular process issued upon it. If it be conceded that the averments of the appellee are true, her appropriate remedy was an application to open the judgment. The record of the attachment proceeding shows that she had notice of the judgment before anything was recovered upon it, and the accuracy of this record is not disputed by her. A judgment entered on a warrant of attorney is as impervious to collateral assault, as a judgment obtained in open court. As to the truth or falsity of. the appellee’s claim, or of the evidence submitted to support or to controvert it, we express no opinion. We merely decide that while the judgments in question remain of record unreversed, an action to recover the money collected upon them cannot be maintained. The judgment is reversed.