McPherson v. Cole , 240 Pa. 444 ( 1913 )

Opinion by

Mr. Justice Stewart,

The original judgment in this case, entered upon confession, for the sum of $600, payable in three years, had been suffered to slumber in undisturbed repose for more than thirty years during the life of the judgment debtor, Henry Cole, without any attempt to revive it. Henry Cole died in 1909 seized of certain real estate. He left surviving a widow, and six children by a former wife. The widow became administratrix of the estate. A year after the death of Cole the use plaintiff in the judgment, George I. Cole, a brother of the decedent, who had acquired the judgment by assignment very shortly after its entry, caused a writ of scire facias to issue on the judgment, the administratrix having first been substituted on the record as defendant. To this writ the administratrix appeared, and confessed judgment of revival 20th March, 1911, in the sum of $1,836. In October following the use plaintiff caused to be issued another scire facias to revive the judgment last above entered, with notice to the heirs of Henry Cole. To this writ the administratrix appeared, and again confessed judgment in the sum of $1,856.62, as of November 14, 1911. The proceeding here for review began with a petition of Daniel Cole, son of Henry Cole, the deceased debtor, for a rule to open the judgment of revival confessed by the administratrix. It was averred in the petition that in confessing the judgments the administratrix had acted in bad faith; that the petitioners and other heirs of the defendant debtor had employed counsel whom they had instructed to. ask of the court leave for them to intérvene and make defense to the writs of scire facias; that their said counsel was deterred from so doing only by the assurance from the. counsel representing the administratrix that at the instance of the latter he had prepared an affidavit of defense, which he then exhibited to petitioners’ counsel, denying the right of plaintiff to recover, and that the same would be duly filed; that such affidavit never was filed, but that instead thereof the administratrix filed an affidavit in which judgment was confessed. The petition alleged a conspiracy between the administratrix and the use plaintiff to cheat and defraud the estate of Henry Cole. An answer was filed to the rule and considerable evidence was taken. It was peculiarly a case in which the judge presiding in making his final order should have filed an opinion, accompanying it. with a statement of the general facts of the case and the reasons upon which he based his conclusion. In entire disregard of what we said in Gump v. Goodwin, 172 Pa. 276, as to the duty of the court in such cases, he has cast upon us the burden of finding the facts for our-, selves, and left us to conjecture as to the reasons on which he based his action in making the rule for the opening of the judgments absolute. We have with care examined into the evidence submitted to see for ourselves what if any reason is there afforded for the opening of the judgments. It is only necessary to say that we have found sufficient to convince us that the judicial discretion in opening the judgments was not abused. It is unquestionably true that an administratrix may confess judgment in an action of scire facias to revive;, but when this is done, it must be in the exercise of good. faith with proper regard to the rights of the estate she represents, and of those interested therein. When done with a purpose to gain advantage to herself or others, in prejudice of the rights of those legally interested, no matter whether creditors or heirs, and the judgment would so operate, it is the undoubted right of those prejudiced thereby to demand equitable interference. We pass no judgment upon the good faith of the administratrix in this case further than to say that there is sufficient evidence in the case to put the parties to the proof of their allegations. Were there nothing more, the mere fact that the confession in this case deprived the estate which it was her duty to protect and conserve of the advantage of the presumption of payment of a judgment more than thirty years old,'without any better reason than, as she avers in her affidavit, that the defendant had told her in his lifetime that the judgment was unpaid, this in itself would be quite sufficient.

The order of the court opening the judgment seems to include the original judgment with the judgment of revival. We find nothing in the prayer of the petition asking that the original judgment be opened; nor do we find anything in the evidence that calls for any interference with it. It is not necessary that it should be opened in order to do full justice between these parties. At the time of the judgment debtor’s death, it was more • than thirty years old and unrevived. Such a judgment can sustain no process of any kind except a scire facias. As the judgment stood at the defendant’s death, it was absolutely unenforceable until revived. An action to revive would encounter at once a presumption of payment which would end it, except as that was overcome by proof to the contrary. We modify the order and decree of the court by eliminating from its operation the original judgment, and as so modified, the order and decree are affirmed at costs of appellant.