Weaver v. Wible

Supreme Court of Pennsylvania

Weaver v. Wible

72 Pa. 469, 1870 Pa. LEXIS 401

CourtSupreme Court of Pennsylvania

DecidedJanuary 3, 1870

DocketNo. 143

StatusPublished

This text of 72 Pa. 469 (Weaver v. Wible) 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

Weaver v. Wible, 72 Pa. 469, 1870 Pa. LEXIS 401 (Pa. 1870).

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Opinion

The opinion of the court was delivered, by

Thompson, C. J.

— This was a sei. fa. sur judgment in ejectment, quare executionem non. Of course the only question involved, was whether that judgment, standing unreversed and unexecuted, might still be executed by appropriate process. The attempt below was to answer the demand of the writ by faets, which would show that no such judgment ought to exist on original grounds. In other words, a retrial of the original controversy was proposed. But this cannot be. A release of the judgment, or a conveyance of title by the plaintiff to the defendant, which would operate necessarily as a release of the judgment, would undoubtedly be pleadable to a scire facias. They are defences occurring after judgment, and are good reasons why execution should not he awarded; but how the Statute of Limitations, arising partly before and partly after the judgment, could or ought to be regarded in the light of a release of the judgment, or conveyance of title, I do not see. The plan to try that is to turn out and sue upon it; the former recovery is no bar to that. If a trial of title on original grounds were allowable in the scire facias, it might follow that if the result in the scire facias should be the same as that in the original action, a single action in an ordinary ejectment would be conclusive, on account of two verdicts on the question of title the same way. We do not mean to go out of the case before us in any particular, or to say whether the recovery in ejectment,'without a habere facias possessionem, or actual entry, tolled the statute or not. That we must-leave until we are required to pass upon it; it would he improper to do so now, as from what we have said, it is apparent it is not in this case. The court below committed no error either in its charge or the rejection of the evidence complained of.

Judgment affirmed.

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The opinion of the court was delivered, by

Thompson, C. J.

— This was a sei. fa. sur judgment in ejectment, quare executionem non. Of course the only question involved, was whether that judgment, standing unreversed and unexecuted, might still be executed by appropriate process. The attempt below was to answer the demand of the writ by faets, which would show that no such judgment ought to exist on original grounds. In other words, a retrial of the original controversy was proposed. But this cannot be. A release of the judgment, or a conveyance of title by the plaintiff to the defendant, which would operate necessarily as a release of the judgment, would undoubtedly be pleadable to a scire facias. They are defences occurring after judgment, and are good reasons why execution should not he awarded; but how the Statute of Limitations, arising partly before and partly after the judgment, could or ought to be regarded in the light of a release of the judgment, or conveyance of title, I do not see. The plan to try that is to turn out and sue upon it; the former recovery is no bar to that. If a trial of title on original grounds were allowable in the scire facias, it might follow that if the result in the scire facias should be the same as that in the original action, a single action in an ordinary ejectment would be conclusive, on account of two verdicts on the question of title the same way. We do not mean to go out of the case before us in any particular, or to say whether the recovery in ejectment,'without a habere facias possessionem, or actual entry, tolled the statute or not. That we must-leave until we are required to pass upon it; it would he improper to do so now, as from what we have said, it is apparent it is not in this case. The court below committed no error either in its charge or the rejection of the evidence complained of.

Judgment affirmed.

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Bluebook (online)

72 Pa. 469, 1870 Pa. LEXIS 401, Counsel Stack Legal Research, https://law.counselstack.com/opinion/weaver-v-wible-pa-1870.