Bridges v. Adams

Bartol, C. J., delivered the opinion of the Court. The order of the Court of Common Pleas, passed on the 28th day of July, 1869, by its terms, quashed the writ of seire facias, and struck out the judgment which had been rendered thereon. The appeal wás taken “from the judgment sustaining the motion to quash.” In considering it, however, we shall not limit its effect to that part of the order quashing the scire facias, but treat it, as it was evidently intended by the appellants, as bringing up for review the entire order of the 28th of July. It is necessary, first, to construe the order, and to understand exactly its scope, or legal operation and effect, for these seem to have been misconceived by the appellants' counsel.

It appears from the record, that at January Term, 1857, the appellants had obtained, in the Court of Common Pleas, a judgment by default against the appellee. That judgment so remained as a mere interlocutory judgment, until the 15th day of September, 1865, when the appellants caused a writ of seire facias to be issued out of the same Court, for the purpose of having the damages assessed and the judgment by default extended; and, accordingly, on the 19th day of June, 1866, in the proceeding upon the scire facias, the damages were assessed -by the Court, the judgment extended and final judgment entered for the sum of $471 and costs. At the same term, the defendant, appellee, filed his motion “ to strike out the judgment, and at the September Term, in the same year, he made his motion to quash the writ of scire facias. The case was continued till May Term, 1869, when the order of the 28th of July, 1869, was passed. ⁵⁷⁹ There is some ambiguity in the proceedings growing out of the fact that “ the motion to strike out the judgment” does not exactly define to which judgment it refers, whether to the original judgment by default, or the final judgment entered in 1866; and, in some aspects, the motion seems to have been intended to apply to both.

However that may be, it appears that the Court, by its order of the 28th of July, actually struck out only the final or extended judgment. No sufficient cause was shown for striking out the original judgment by default, and if the order of July could be construed as striking out or rescinding that judgment, it would be error and would be reversed. But such is not our construction of the order, although it may not be in its terms entirely free from ambiguity, yet we think its correct interpretation and only effect was to strike out the judgment which had been rendered in the proceeding under the scire facias; that is the extended or final judgment of June 19th, 1866,, leaving the original judgment by default, which had been rendered in 1857, in full force and entirely unaffected by the. order. So construing the order, the appeal may be very briefly disposed of.

The motion to strike out the judgment having been made, at the