Commonwealth ex rel. De Burt v. De Burt , 7 Pa. Super. 230 ( 1898 )

Opinion by

Beaver, J.,

No substantial defense is set forth in either of the affidavits of defense filed in this case. The question of the previous payment by the appellant to the relatrix, under and in pursuance of the obligation of his recognizance as he claims, will be considered, when the full sum of $100, less that amount, has been paid to her. He does not deny that the amount claimed by her as being due at the time the scire facias was issued upon the recognizance was in fact due.

If the decree of the court of quarter sessions should, in view of changed circumstances and conditions, be modified, the defendant can make his application for such modification in that court. The decree of maintenance cannot be reformed or modified in this action.

Whilst, strictly speaking, there may be some irregularity in the form in which the judgment in this case was entered, the effect of it will do the defendant no harm. As was said in Kiehl v. Com., 18 W. N. C. 505, a case in many respects similar to the one under consideration: “ He can safely pay all that is due or may become due to the use plaintiff under the sentence of the court of quarter sessions, without fear of being required to pay any part thereof a second time. The court below will take care that he is not harmed, either in person or estate.” The judgment was properly entered in favor of the commonwealth for the full amount of the recognizance. The decree does not in our opinion contemplate the entry of two distinct judgments in the scire facias issued upon the recognizance nor does the judgment, as claimed by appellant, amount to the sum of $138. What was doubtless intended by the court in entering judgment and the only practical effect which can be given to it, as entered, is as if judgment had been directed to be entered in favor of the commonwealth for the sum of $100, the amount of the recognizance, with leave to the relatrix, Lueretia De Burt, to take out execution for the sum of $83.00 due her under the decree of the court in the proceedings in the court of quarter sessions in which the recognizance was taken The practical effect of the judgment is to give the relatrix the amount practically admitted to be due to her under the recognizance and, inasmuch as this amount does not, in connection with previous payments alleged by the defendant to have been made by him in discharge of his obligation under the recognizance, equal the sum of $100, he cannot suffer.

The judgment is affirmed.