Gilmore & Duffy v. Dunleavy

Superior Court of Pennsylvania

Gilmore & Duffy v. Dunleavy

6 Pa. Super. 603, 1898 Pa. Super. LEXIS 209

CourtSuperior Court of Pennsylvania

DecidedFebruary 19, 1898

DocketAppeal, No. 18

StatusPublished

Cited by1 cases

This text of 6 Pa. Super. 603 (Gilmore & Duffy v. Dunleavy) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Gilmore & Duffy v. Dunleavy, 6 Pa. Super. 603, 1898 Pa. Super. LEXIS 209 (Pa. Ct. App. 1898).

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Opinion

Opinion by

Beaver, J.,

“ The power to entertain and decide upon motions for summary relief is a necessary incident of jurisdiction. If an entry [604]*604of satisfaction be made upon the record by mistake, by fraud or by falsely personating the plaintiff, the court where the record is has an undoubted right, upon proof of the facts, on notice to the parties, to strike off such improper entry, and its decision upon such facts is the decision of a matter of fact which is not the subject of review on writ of error: ” Murphy v. Flood, 2 Gr. Pa. Ca. 411.

“ Undoubtedly the court of common pleas has power to inquire into the entry of satisfaction upon its record and, if the facts show that it was improperly done or without authority, to order the entry to be vacated. This is but the exercise of a power necessary to prevent injustice. The presumption is, the court exercised the power rightfully and on good cause shown. The facts are not before us and, therefore, cannot be reviewed: ” McKinney v. Fritz, 2 W. N. C. 173.

There is no statutory right of appeal from an order of the court of common pleas, striking from the record an entry of satisfaction of a judgment. The only effect of the present appeal, therefore, is that of the common law writ of certiorari. This writ, as is well known, brings up the record in any given case for review and correction, but it brings the record only : Holland v. White, 120 Pa. 228; Rand v. King, 134 Pa. 641. The errors to be corrected must appear on the face of the record, and the merits cannot be inquired into upon this writ, but are left to the judgment of the conrt below. Neither the opinion of the court nor the evidence forms any part of the record proper, and, for that reason, they will not be examined on certiorari: Rand v. King, supra.

In the case under consideration the court below had jurisdiction. The record shows that a rule was granted on defendant to show cause why satisfaction should not be stricken off. Answers were filed, and, on the 16th of August, 1897, the entry is made, “ Rule absolute, and the satisfaction entered in this case stricken off.” The opinion of the court and the testimony upon which the decree was founded are not before us. We are confined in our inquiry simply to the regularity of the proceedings, as shown by the record. They appear to be regular. If we were to travel beyond the record, it would seem as if the court had acted upon grounds which justified its action.

Appeal dismissed at the costs of the appellants.

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Opinion by

Beaver, J.,

“ The power to entertain and decide upon motions for summary relief is a necessary incident of jurisdiction. If an entry [604]*604of satisfaction be made upon the record by mistake, by fraud or by falsely personating the plaintiff, the court where the record is has an undoubted right, upon proof of the facts, on notice to the parties, to strike off such improper entry, and its decision upon such facts is the decision of a matter of fact which is not the subject of review on writ of error: ” Murphy v. Flood, 2 Gr. Pa. Ca. 411.

“ Undoubtedly the court of common pleas has power to inquire into the entry of satisfaction upon its record and, if the facts show that it was improperly done or without authority, to order the entry to be vacated. This is but the exercise of a power necessary to prevent injustice. The presumption is, the court exercised the power rightfully and on good cause shown. The facts are not before us and, therefore, cannot be reviewed: ” McKinney v. Fritz, 2 W. N. C. 173.

There is no statutory right of appeal from an order of the court of common pleas, striking from the record an entry of satisfaction of a judgment. The only effect of the present appeal, therefore, is that of the common law writ of certiorari. This writ, as is well known, brings up the record in any given case for review and correction, but it brings the record only : Holland v. White, 120 Pa. 228; Rand v. King, 134 Pa. 641. The errors to be corrected must appear on the face of the record, and the merits cannot be inquired into upon this writ, but are left to the judgment of the conrt below. Neither the opinion of the court nor the evidence forms any part of the record proper, and, for that reason, they will not be examined on certiorari: Rand v. King, supra.

In the case under consideration the court below had jurisdiction. The record shows that a rule was granted on defendant to show cause why satisfaction should not be stricken off. Answers were filed, and, on the 16th of August, 1897, the entry is made, “ Rule absolute, and the satisfaction entered in this case stricken off.” The opinion of the court and the testimony upon which the decree was founded are not before us. We are confined in our inquiry simply to the regularity of the proceedings, as shown by the record. They appear to be regular. If we were to travel beyond the record, it would seem as if the court had acted upon grounds which justified its action.

Appeal dismissed at the costs of the appellants.

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6 Pa. Super. 603, 1898 Pa. Super. LEXIS 209, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gilmore-duffy-v-dunleavy-pasuperct-1898.

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