Estate of McClain , 180 Pa. 231 ( 1897 )

Opinion by

Mr. Justice Williams,

This appeal is from a decree of distribution made by the orphans’ court of Philadelphia. The fund was raised by the settlement of an account by the executors, the appellants. Among the claimants upon the fund was the Commercial National Bank of Philadelphia, the appellee. Its claim was upon a judgment m its favor and against the estate of the decedent, regularly entered in the court of common pleas No. 1, upon a verdict rendered by the jury 'after a trial had in due form. The payment of this judgment was resisted, not by reason of anything happening since the judgment was rendered, but for reasons that were used as a defense to the claim on the trial in the common pleas which resulted in the judgment. It was an ingenious effort to retry the cause in the orphans’ court, and thereby to reach a different result from that reached on the trial in the common pleas. The learned judges of the orphans’ court declined to hear the defense so set up, holding that they were without power to retry the cause or to attack the judgment collaterally. The correctness of this ruling is really the only question raised by this appeal. The general doctrine affirming the conclusiveness of a judgment as an adjudication upon the questions covered by it does not seem to be denied by the appellants. It is too well settled to be successfully attacked. The effort appears rather to be to persuade the orphans’ court that, although the evidence in relation to the accounts between the bank and McClain and the bank and Nelson Bros. & Co. was all before the jury on the trial in the common pleas, it could not have received the attention it deserved at the hands of the jury, or the amount of their verdict would have been less by about $2,000 than that which they returned. Even if this was true, the remedy of the appellants would be in the court in which the trial took place. In the orphans’ court the judgment is not subject to correction, nor can the mistakes of the jury be considered. A judgment may be corrected for mistake and impeached for fraud, but it must be done by the court in which it was rendered, and on a proper application. It cannot be done in a collateral proceeding : Hamilton v. Seitz, 25 Pa. 226; Philadelphia v. Girard’s Heirs, 45 Pa. 9; Casebeer v. Mowry, 55 Pa. 419. The question for determination in the common pleas was the amount due the bank upon the note sued on. That question was settled, and the amount ascertained by tbe verdict and the judgment entered thereon. The question which the appellants now seek to raise is exactly the same — the amount really due upon the note sued on in the common pleas at the time when the jury rendered their verdict. The question was settled by the judgment, and it is now res adjudicata: Myers v. The Kingston Coal Co., 126 Pa. 582.

It is true, as asserted by appellants, that the allowance of a set-off is an effort to avoid a multiplicity of suits, but after a claim has been put in judgment, set-off as against the claim so judically determined is conclusively presumed to have been made and the strife over it is at an end. Cases like Hibert v. Lang, 165 Pa. 439, have therefore no application.

The orphans’ court was right in its holding, and the decree appealed from is now affirmed.