Hays v. Commonwealth , 14 Pa. 39 ( 1850 )

The opinion of the court was delivered, by

Rogers, J.

— Unless this be takexi to be a judgment by confession, it is very clear it cannot be supported; for as a judgment by default, the objections are insurmountable. It appears to be the act of the court; for on the trial list, in the handwriting of the president judge, is the following entry: February 2, 1842, judgment for plaintiff, sum to be liquidated by the prothonotary. This was ascertained to be $133.98. All things are presumed to be rightly done in a court of record, and we are bound by this maxim, as is ruled in Sybert v. The Bank, 5 Watts 305, to infer that the court gave judgment on an agreement, or with the acquiescence of the parties. And this is the natural presumption, as we are unwilling to attribute to the court the great absurdity of rendering judgment without the assent of the parties, or by default, under the circumstances disclosed by the record. And this view of the case is confirmed by the subsequent motion of the defendant to open the judgment, thereby admitting its regularity and questioning merely the amount of the judgment rendered. That this was the effect of the motion, which it is to be presumed they understood, cannot be denied. The rule is to show cause why the judgment should not be opened. If the defendant intended to dispute the regularity of the judgment, it ought to have been a rule to set it aside. It must not be forgotten, that opening a judgment is but a mode of allowing the defendant a hearing on the merits, the judgment remaining intact, a lien and security for the money afterwards ascertained to be due. This motion is addressed to the discretion of the court; and in this instance, for good and sufficient reasons, no doubt, which we cannot review, the rule was discharged. After that act, I cannot see how the validity of the judgment can be now questioned by the defendant. It must have been made appear to the court, that it was a judgment by confession, a judgment rendered with the assent and acquiescence of all the parties. And we are driven to this conclusion, unless we are prepared to stultify the court, and all the counsel, said to be five in number, engaged in the cause. In Zenger v. Gonter, 13 Serg. & Rawle 58, it is ruled that a judgment entered generally is not to be considered a judgment by confession. I am not disposed to dispute the authority of that case, although I am not willing to extend it to all cases. This case differs from that, in this, that in Zenger v. Gonter, it did not appear to be the act of the court; here it does. Barde v. Farmer, 3 Yeates 149, rules this case. It is there held that where defendant has appeared by attorney, and judgment is entered against him, it shall be taken to be a judgment by confession. Here every thing that appears on the record tends to show that the judgment was rendered with the assent and acquiesence of the defendant.

Judgment affirmed.

The judgment on the scire facias is also affirmed, depending altogether on the validity of the first judgment.