Reidenauer v. Killinger

Supreme Court of Pennsylvania

Reidenauer v. Killinger

11 Serg. & Rawle 119, 1824 Pa. LEXIS 28

DecidedMay 17, 1824

StatusPublished

This text of 11 Serg. & Rawle 119 (Reidenauer v. Killinger) 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

Reidenauer v. Killinger, 11 Serg. & Rawle 119, 1824 Pa. LEXIS 28 (Pa. 1824).

Pincite

Opinion

Per Curiam.

This is a scire facias on a mortgage given by Peter Smith, deceased, to Michael Killinger, the defendant in erroxv The pleadings are of a yeiy extraordinary nature. It appears, however, that the widow of Peter Smith, was admitted as a defendant, and having pleaded, that the mortgage was given with[121]*121out valuable consideration, with a view to defraud her of her dower, the plaintiff confessed' that she was entitled to dower. There were several other pleas put in by the administrator of Peter Smith, on which issues were joined, anda verdict found for the plaintiff. Judgment was entered for the plaintiff, on which a levari facias was issued, by virtue of which the mortgaged premises were sold. It is assigned for error, that judgment was entered generally for the plaintiff, whereas it ought to have been subject to the widow’s dower. It appears to the court that the judgment is to be understood as being subject to the widow’s dower. The short docket entry of judgment refers to the other part of the record, in which the right of dower is confessed. But then there is eri’or assigned also in the execution, which was not conformable to the judgment. It is the opinion of the court, that this error is fatal. The execution was not conformable to the judgment, and the consequence was, that the land was levied on, and sold, without regard to the widow’s dower. In order to do justice, therefore, to the widow, the execution must be reversed, but the judgment is to be affirmed.

Judgment affirmed' and execution reversed.

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Per Curiam.

This is a scire facias on a mortgage given by Peter Smith, deceased, to Michael Killinger, the defendant in erroxv The pleadings are of a yeiy extraordinary nature. It appears, however, that the widow of Peter Smith, was admitted as a defendant, and having pleaded, that the mortgage was given with[121]*121out valuable consideration, with a view to defraud her of her dower, the plaintiff confessed' that she was entitled to dower. There were several other pleas put in by the administrator of Peter Smith, on which issues were joined, anda verdict found for the plaintiff. Judgment was entered for the plaintiff, on which a levari facias was issued, by virtue of which the mortgaged premises were sold. It is assigned for error, that judgment was entered generally for the plaintiff, whereas it ought to have been subject to the widow’s dower. It appears to the court that the judgment is to be understood as being subject to the widow’s dower. The short docket entry of judgment refers to the other part of the record, in which the right of dower is confessed. But then there is eri’or assigned also in the execution, which was not conformable to the judgment. It is the opinion of the court, that this error is fatal. The execution was not conformable to the judgment, and the consequence was, that the land was levied on, and sold, without regard to the widow’s dower. In order to do justice, therefore, to the widow, the execution must be reversed, but the judgment is to be affirmed.

Judgment affirmed' and execution reversed.

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Bluebook (online)

11 Serg. & Rawle 119, 1824 Pa. LEXIS 28, Counsel Stack Legal Research, https://law.counselstack.com/opinion/reidenauer-v-killinger-pa-1824.