Kitchen v. Funston

Supreme Court of Pennsylvania

Kitchen v. Funston

14 Serg. & Rawle 337, 1826 Pa. LEXIS 82

DecidedJuly 8, 1826

StatusPublished

This text of 14 Serg. & Rawle 337 (Kitchen v. Funston) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kitchen v. Funston, 14 Serg. & Rawle 337, 1826 Pa. LEXIS 82 (Pa. 1826).

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Opinion

Per Curiam.

This was a scire facias issued by John and Nicholas ,Funston, against Henry Kitchen and others, heirs and terre-tenants of land which was the estate of William Kitchen the elder, deceased, on a judgment obtained against him in his lifetime by the said J. and N. Funston. The cause was submitted to arbitration, under the compulsory arbitration act, and the arbitrators, reported as follows: “We find for the plaintiffs one hundred and thirty-six dollars and fifteen cents, to be levied of the lands of William Kitchen, deceased, or that descended to the heirs through or by virtue of him, the said William Kitchen, deceased. And the said plaintiffs to relinquish their claim to Eves's judgment.”

Several errors have been assigned, the only one of which, of any weight, is that the report of the arbitrators is uncertain. And it is the opinion of the court that this is a fatal exception., This report, by virtue of the act of assembly under which it was made, has the effect of a judgment, and therefore should have the certainty of a judgment. If it had been in favour of the plaintiffs, to be levied on the lands which descended to the defendants, as heirs of their father, William Kitchen, it might have been supported. But it is not so, — it is to be levied on all the lands which descended by, through, or by virtue of their father. Now, there is no saying what this means, or to what hxtent the judgment may be carried. Lands may possibly have descended to the defendants from their grandfather, and these might be said, to descend through, or by virtue of their father; and yet, certainly, they would not be liable to execution for a debt of their father. If the judgment should stand, it might lead to an immediate dispute, concerning the lands intended to be included in it. This would be extremely inconvenient, and is, indeed, inconsistent with the [338]*338nature of a judgment on an award. It is our opinion, therefore, that the judgment should be reversed, and the record remitted to the Court of Common Pleas, to be further proceeded in according to law.

Judgment reversed, and. record remitted, &c.

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Per Curiam.

This was a scire facias issued by John and Nicholas ,Funston, against Henry Kitchen and others, heirs and terre-tenants of land which was the estate of William Kitchen the elder, deceased, on a judgment obtained against him in his lifetime by the said J. and N. Funston. The cause was submitted to arbitration, under the compulsory arbitration act, and the arbitrators, reported as follows: “We find for the plaintiffs one hundred and thirty-six dollars and fifteen cents, to be levied of the lands of William Kitchen, deceased, or that descended to the heirs through or by virtue of him, the said William Kitchen, deceased. And the said plaintiffs to relinquish their claim to Eves's judgment.”

Several errors have been assigned, the only one of which, of any weight, is that the report of the arbitrators is uncertain. And it is the opinion of the court that this is a fatal exception., This report, by virtue of the act of assembly under which it was made, has the effect of a judgment, and therefore should have the certainty of a judgment. If it had been in favour of the plaintiffs, to be levied on the lands which descended to the defendants, as heirs of their father, William Kitchen, it might have been supported. But it is not so, — it is to be levied on all the lands which descended by, through, or by virtue of their father. Now, there is no saying what this means, or to what hxtent the judgment may be carried. Lands may possibly have descended to the defendants from their grandfather, and these might be said, to descend through, or by virtue of their father; and yet, certainly, they would not be liable to execution for a debt of their father. If the judgment should stand, it might lead to an immediate dispute, concerning the lands intended to be included in it. This would be extremely inconvenient, and is, indeed, inconsistent with the [338]*338nature of a judgment on an award. It is our opinion, therefore, that the judgment should be reversed, and the record remitted to the Court of Common Pleas, to be further proceeded in according to law.

Judgment reversed, and. record remitted, &c.

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Bluebook (online)

14 Serg. & Rawle 337, 1826 Pa. LEXIS 82, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kitchen-v-funston-pa-1826.