O'Hara v. Baum , 82 Pa. 416 ( 1876 )

Mr. Justice Sharswood

delivered the opinion of the court, October 23d 1876.

It is impossible, we think, to sustain the judgment below against Frances O’Hara. It was entered by the prothonotary upon the plaintiffs’ praecipe against her “ in default of notice of affidavit, specification and statement of defence.” It is not a judgment for want of a sufficient affidavit of defence, but under sections 3d and 4th of rule 5th of the court below. The affidavit of Mrs. O’Hara was not a specification of set-off and statement of defence, but a total denial of liability upon the mortgage sued upon. It was not a case, therefore, within that rule, as was decided by this court in Gannon et al. v. Fritz, 6 Pittsburgh Law Jour. (N. S.) 100. Concede that the affidavit was insufficient, Mrs, O’Hara was not heard below on that question, and it may be that if she had been she would have put in a supplemental affidavit. It is clear that we cannot hold the judgment valid on that ground.

With the subsequent proceedings in the cause we have nothing to do. They are certainly, to say the least, very anomalous. . On the 31st October 1874 a rule was granted, whether on behalf of Mrs. O’Hara or of both defendants is not stated, to show cause why the judgment should'not be stricken off. It seems by the record that, December 2d 1874, that rule was discharged. No rule was taken to open the judgment and let the defendants into a defence. Yet, on the 2d January 1875, a petition by Michael O’Hara, against whom judgment for want of appearance and affidavit of defence had been taken at the same time with that entered against Mrs. O’Hara, and which stood unimpeaehed, was presented praying an order of the court to enable the .defendants to take testimony to show what was due, if anything. On the same day a commissioner was appointed to take testimony and report the facts to the court. In the order he is said to be appointed to take testimony P in discovery of the amount for which the plaintiffs are entitled to judgment.” His report was afterwards made and exceptions filed. May 6th 1876, the exceptions were dismissed, and the rule, granted October 31st 1874 (which, as we have seen, had been before discharged), was again discharged. It would not be just to charge these.irregularities on the learned court below. They may have been led to believe that the rule of October 31st 1874 was a rule to open the judgment, and had not been disposed of. It is true that in proceedings upon a recorded mortgage there is not much practical difference between striking off and opening a judgment. The judgment in such cases neither creates nor continues the lien. It is nevertheless important to observe the distinction in practice in all cases. A motion to set aside or strike off a judgment must be on the ground of irregularity appearing on the face of the record; a motion to open it is an appeal to the equitable power of the court to let the defendant into a defence. In any aspect of the case, however, we can see no good reason why these proceedings should be regarded as any waiver by Mrs. O’Hara of the irregularity of the judgment against her.

The judgment against Michael O’Hara is affirmed. The judgment against Frances O’Hara is reversed, and-procedendo awarded.