Topley's Appeal

13 Pa. 424

• Court: Supreme Court of Pennsylvania
• Decided: May 15, 1850
• Status: Published

Opinion

The opinion of the court was delivered by

Rogers, J.

An inspection of the record has satisfied me that the only difficulty which attends this case, arises from the mistake of the prothonotary, in entering the judgment on the scire facias to No. 212, April term, 1848, instead of entering it, as he should have done, on the scire facias to No. 5, January term, 1848. The amicable scire facias, as it is called, expressly refers to No. 5, January term, 1848, which was an adverse scire facias to revive the judgment, and continue the lien of the original judgment. Although called an amicable scire facias, it cannot be considered a new and independent proceeding, and, consequently, abandonment of the scire facias previously issued, but as an amicable agreement to enter judgment on that scire facias. It is not, therefore, governed by Meason’s estate, 4 W. 341, which was a clear case of abandonment of the first scire facias, by issuing a second, distinct and independent of the first, and without the slightest reference to it. Here, be it remarked, no person is injured; for the sem facias No. 5, January term, 1848, was still pending when the fund in court was distributed; the five years from the issuing of it, to continue the lien of the judgment, not having expired. As it was the mistake of the prothonotaiy, and not of the party, it was an error which can, without injury to any person, and which ought to be corrected, by permitting it to be filed as of the proper number and term. That which ought to have been done, we consider as done, and, consequently, we are of opinion the court erred in rejecting the claim of the appellant on his judgment, and in postponing him to former judgments.

Decree reversed, and decree that the money be paid to appellant.