McClung v. Murphy
Pennsylvania Court of Common Pleas, Philadelphia County
THIS was a summons, in which J. McClung was the plaintiff, and W. N. Murphy and Elizabeth Sansom were the defendants, to December term, 1837, 263. December 23, 1837, judgment for want of an affidavit of defence, sec. leg. December 27, 1837, damages assessed on a promissory note at 552 dollars, 88 cents. Elizabeth Sansom, one of the defendants, died on the 26th December, 1837; which was after judgment, and before the assessment of damages. A fieri facias was issued.
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THIS was a summons, in which J. McClung was the plaintiff, and W. N. Murphy and Elizabeth Sansom were the defendants, to December term, 1837, 263. December 23, 1837, judgment for want of an affidavit of defence, sec. leg. December 27, 1837, damages assessed on a promissory note at 552 dollars, 88 cents. Elizabeth Sansom, one of the defendants, died on the 26th December, 1837; which was after judgment, and before the assessment of damages. A fieri facias was issued. The surviving defendant obtained this rule to show cause why the fieri facias should not be set aside; and offered to enter…
1Opinion of the Court
*178The opinion of the court was delivered by
Pettit, President.—
The defendant’s counsel has contended,
1. That a judgment, for want of an affidavit of defence, is an interlocutory judgment, and does not entitle the plaintiff to execution, until assessment of damages,
2. That damages must be assessed against all the defendants.
3. That if any defendant dies before assessment, a scire facias must issue to the personal representatives of the deceased.
4. That any execution issued against a deceased party, is absolutely void.
5. That the time allowed by law, for the entry of bail, for stay of execution,…
2Cases cited3 opinions
- Commonwealth v. BaldwinSupreme Court of Pennsylvania · 1832
- Lewis v. SmithSupreme Court of Pennsylvania · 1815
- Oliphant v. FerrenSupreme Court of Pennsylvania · 1832
3Cited by1 opinion
- Sellers v. BurkSupreme Court of Pennsylvania · 1864