Toomey v. Rosansky

Opinion by Beaver, J., A judgment on a transcript from an alderman against Conrad Toomey and Kate Toomey, his wife, in right of said wife, was entered in the common pleas of Allegheny county. An exemplification of it was filed in the common pleas of Westmoreland county. The land of the defendant, Kate Toomey, in the latter county, was sold by the sheriff to W. W. Whitesell, whose title thereto was subsequently conveyed to the defendants who were in possession. In the trial of an ejectment brought by Catherine Toomey, it was contended that the original judgment before the alderman, entered in the common pleas of Allegheny county, was void and that all subsequent proceedings thereon in Westmoreland county were without validity. The only practical question raised by the several specifications of error relates to the validity of the original judgment. If, as claimed by the appellant, it was void from the beginning, the appellee admits that the proceedings based thereon were a nullity. The appellee claims that the original judgment was good but that in any event it was only voidable and, if so, the application to avoid it must be made in the county where the judgment- was originally entered. The transcript of the aider-man sets forth: “And now, November 3, 1893, at 11 A. M., parties appear for plaintiff. J. H. Dean sworn claims the sum of $230.00 due to the pltff. by deft, on book acct. for groceries sold and delivered to the defts., the said goods being necessaries of life ordered by the deft., Kate Toomey, for the use of defts.’ family. Acct. produced and proven and now, after hearing the proof and allegations, the judgment entered publicly in favor of the pltffs. and against defts. for the sum of $230 and costs for suit.” The appellant claims that this judgment is void for the reason that the transcript does not set forth in terms the fact that the defendant, Catherine Toomey, contracted to pay for said goods, as required by the Act of April 11, 1848, P. L. 536, and the construction thereof by our Supreme Court in numerous cases. It is to be remembered, however, that at the time of the passage of this act a married woman was not allowed to make a contract for any purpose, except in the exceptional case provided for therein. The status of a married woman has been completely changed since that day, particularly by the acts of 1887 and 1893. She now has the power to make a contract [511] in all ordinary cases, except as provided for in the said acts, as if she were a feme sole. In Abell v. Chaffee, 154 Pa. 254, it was said in reference to the act of 1887: “ The authorities which were applicable to questions arising before the passage of that act are entirely inapplicable now. The judgment of a married woman which was then presumably void is now presumably valid. It is no longer necessary to such validity to set out on the record the facts which, before the act, were necessary to give the judgment validity.” If the judgment were held to be void, it would be necessary to presume that the record of the .alderman contains all the evidence of a contract on the part of the defendant, Catherine Toomey, which was taken before him. In other words, that there was no evidence of a contract on her part to pay for the goods ordered by her. This we cannot do. The judgment is presumably valid and, if it be no longer necessary to set out on the record the facts which before the act of 1887 were necessary to give the judgment validity, we see no difficulty whatever in regard to this case. In Hogan’s Estate, 181 Pa. 500, 516, the transcript of the alderman upon which a judgment was entered in the common pleas was as follows: “ Plaintiff, by his attorney, claims $230.25, balance due on book account for groceries, etc., sold and delivered to defendants. Demand $230.25. Defendants do not appear. On hearing plaintiff’s proof, etc., judgment publicly for the plaintiffs and against defendant by default for $230.25 debt, being for necessaries for family, and costs of suit.” This was held to be a valid judgment and, in the distribution of the assigned estate of the wife, was paid. We can see no essential difference between the latter case and the one under consideration. So far as the proceedings in Westmoreland county were concerned, the judgment was valid. If the plaintiff in the ejectment had desired to contest its validity, she should have done so in the court in which it was entered originally. Unless the judgment were absolutely void upon its face, it could not be attacked collaterally in this proceeding. All the late authorities fully sustain the rulings of the court below. Judgment affirmed.