McKinney v. Brown , 130 Pa. 365 ( 1889 )

Opinion,

Mb. Chief Justice Paxson :

Error was assigned in this case to the refusal of the court below to strike off the judgment as to Mrs. Jennie Brown. The judgment entered was recovered before a justice of the peace against Robert P. Brown and Jennie Brown, and a transcript thereof was filed in the Common Pleas for the purpose of lien only. This does not give the Common Pleas jurisdiction over the judgment. That court cannot open or set it aside. The Common Pleas can only acquire jurisdiction over it when it is brought into that court upon certiorari or appeal. The judgment is still in force before the justice, and any attack upon it must be made there: Dailey v. Gifford, 12 S. & R. 72; O’Donnel v. Seybert, 13 S. & R. 54; Lacock v. White, 19 Pa. 495; Boyd v. Miller, 52 Pa. 431.

It was urged, however, that the judgment was against a married woman, and therefore void. Undoubtedly, the court below would have been justified in striking off the judgment, if it appears upon its face to be void, notwithstanding the fact that it was entered upon a transcript; for a void judgment is no judgment. It would be a mere blur upon the records of the Common Pleas; a something which has no business there; and that court, having the control of its own records, could doubtless strike therefrom anything which had been unlawfully placed there. When we come to examine this record, we find from the transcript that it was a suit against a husband and wife for the sum of $ 174, “ being a balance unpaid of rent of a house occupied by defendants and furnished by plaintiff for use of defendants’ family, upon the promise on the part of said Jennie Brown to pay therefor, the same being necessary for herself and family, upon credit of her separate estate.”

We need not stop to inquire how far such a suit could be maintained against a married woman’s separate estate. This judgment was obtained in 1885, and is governed by the act of April 11, 1848, which provides that in order to bind a married woman’s separate estate, “judgment shall not be rendered against the wife in such joint action, unless it shall be proved that the debt sued for in such action was contracted by the wife, and incurred for articles necessary for the support of the family of the said husband and wife.” We have accordingly held, in repeated instances, that judgments entered against married women, in such cases, must be self-supporting; that is to say, the record must show that the judgment was lawfully entered, and the requisites of the statute complied with. This record is fatally defective. The judgment was taken by default for want of an appearance, and it does not show that a single witness was sworn or examined. In the absence of any testimony how could it have been made to appear to the justicé in any legal manner that “ the debt sued for in such action was contracted by the wife, and incurred for articles necessary ” for the support of herself and family ? In the absence of such statement in the transcript, the judgment is void as against Mrs. Brown. Under such circumstances, it was her right to have it stricken off. While it could not be enforced against her, it was nevertheless entered for the purpose of lien, and may be a cloud upon her title. Against this she is entitled to be relieved.

The order of the court below is reversed, and the rule to show cause why the judgment should not be stricken off, as against Jennie Brown, is made absolute.