KILLEN vs. PEER, ET AL.

Justice of the Peace-Judgment-Parties Must be NamedAddition of Names-Husband and Wife.

A justice of the peace having given judgment against "D. M. Peer and wife," and a transcript having been entered in the Court of Common Pleas and a Scire Facias to revive and continue the lien thereof having been issued, the name of the wife having not been mentioned until judgment was taken thereon against "D. M. Peer and Emeline Peer his wife," a rule to show cause why the name of Emeline Peer, appearing in the judgment and subsequent proceedings thereon, should not be stricken off, will be made absolute and the name stricken off. Parties to an action must be designated by name, and not by mere description.

There is authority for the addition of the names of terre-tenants through the various writs of Scire Facias that may be issued, but there is no authority for the adding of the name of a defendant who was unnamed in the original transcript, present in the files of the court for lien and execution only, although Acts of Assembly clothe the Court of Common Pleas with the power to make amendments when an appeal comes in from the record of a justice.

In the Court of Common Pleas of Westmoreland County, No. 569 May Term, 1909. Rule to show cause.

Moorhead & Smith, for Plaintiff.
Kline & Kline, for Defendant.

McConnell, J.:-This case came before the court originally on a motion for judgment for want of a sufficient affidavit of defense. After the original affidavit of defense had been filed, a supplementary one was also filed. By reason of what appeared in these affidavits, it was conceived by the court that, inasmuch as the name of Emeline Peer appeared as a party defendant in judgment wherewith this Sci. Fa. connects itself as a successor, it would be necessary to consider whether, as to Emeline Peer, such judgments had any legal existence.

A rule was thereupon granted on plaintiff to show cause why the name of Emeline Peer appearing in the judgment at No. 727 May Term, 1894, and in all subsequent proceedings consequent thereon, should not be stricken out. That rule now comes up for determination.

The case first found its way into this court by the filing of a transcript of a judgment recovered before a justice of the peace in a case entitled: "S. H. Killen vs. D. M. Peer and wife." The name of Emeline Peer nowhere appears in the transcript. It is not specifically

said that the summons had been served on any person so named. The record entry is that the summons was "returned under oath by constable served April 20th, 1889." Then follows this entry: "Now April 27th, 1 P. M. o'clock parties all present. Plaintiff presents his books of original entry and swears to the correctness of his account and defendant having off-sets for the bill, judgment is entered for the plaintiff in the sum sixteen dollars and fifty-nine cents and costs of suit." The transcript of the justice's judgment was entered in the Court of Common Pleas, at No. 833 May Term, 1889, under the Act of Assembly authorizing such entry for the purpose of lien and execution. The record in the Common Pleas at that number and term followed the justice's record, and nowhere in it mentioned the name of "Emeline Peer" as a party defendant. A Sci. Fa. to revive and continue the lien of the judgment entered on the transcript was issued to 727 May Term, 1894, and her name nowhere appeared therein. The Sheriff in his return to that writ does not name her as a party defendant, but inter alia, it shows a service on "Mrs. Peer wife of D. M. Peer" by giving her a true and attested copy. However, judgment was taken in that proceeding for want of an appearance "against D. M. Peer and Emeline Peer his wife." The name of Emeline Peer was thus first introduced on the record, and it has been carried along in later proceedings to revive at No. 10 May Term, 1899; No. 359 May Term, 1904, and in this writ of Sci Fa., at No. 569 May Term 1909, whereto she first filed her affidavit denying that she was a party. "A scire facias sur judgment must follow the original judgment in amount, date and parties; a failure in this respect is decisive against the admissibility of the record on a plea of nul tiel record." Richter vs. Cummings, 60 Pa. 441; Dietrich's Appeal, 107 Pa. 174. "The court below had no power to enter a judgment against one not a party to the suit, and that such a judgment was, therefore, a mere nullity." Overstreet vs. Davis, 24 Miss. 393. "Parties to an action must be designated by name and not by mere description." 15 Ency. Pl. & Pr. 478.

Acts of Assembly clothe the Court of Common Pleas with power to make amendments when an appeal comes in from the record of a justice, but, with respect to a

transcript of this kind, it is present in the files of the court for purposes of lien and execution only, and the court has no authority to make the justice's judgment comprehend parties not comprehended in the judgment entered by him. Did he make Emeline Peer a party defendant? It seems quite clear that he did not. "Parties must be designated by name and not by mere description of the person in the process and judgment. The use of the words 'and wife,' following the name of the defendant in the summons issued by the justice, and in the marginal statement of the judgment, does not make the wife a party. On an appeal in such a case to the city court, the plaintiff properly files his complaint against the defendant alone, who was designated by name in the Justice's summons; to have declared against both would have been a departure from the process issued by the justice and from the judgment he had rendered." Sossman vs. Price, 57 Ala. 204. Brickell, C. J., page 205, inter alia, says: "Parties must be designated by name and not by a mere description of the person, in the process and in the judgment. The words and wife' following the name of the appellant, Henry Sossman, in the summons issued by the justice, and in the marginal statement of the parties to the judgment, did not make his wife a party. He was the sole defendant in the process, and in the judgment. On the appeal, the plaintiff properly declared against him alone. If he had declared against the wife by name, jointly with the husband, it would have been a departure from the process issued by the justice, and from the judgment he had rendered." Our own case of Doerr vs. Graybill, 24 Sup. 321, is to the same effect. The syllabus is as follows: "Where a judgment has been recovered before a justice of the peace against defendant and wife, without naming the wife, and the plaintiff thereafter files a transcript of the record of the justice in the common pleas, and no attempt is made before the justice of the peace to amend the record, so as to make the wife a party by name, the court of common pleas is without jurisdiction to amend the record so as to add the name of the wife as a party. In such a case the judgment on the transcript as filed is a judgment against the husband alone."

A judgment unamendable by the Court of Common

Pleas, is filed in that Court, solely for the purpose of lien and execution. To the judgment entered before the justice, Emeline Peer was not a party-for she was not anywhere named as such. The writs of Sci Fa. issued in this court since the filing of the transcript herein are but to revive the lien of a judgment having such parties, and only such parties, as the case before the justice had. Emeline Peer was not a party to the judgment before the justice, and this court is bound to so construe the transcript which constitutes the basis of all that has been done in this court. There is no place along the course of the proceedings in this case where this court, by the exercise of its legal powers, can lawfully make or sanction the making of Emeline Peer a party. The "and wife" in the justice's proceedings constitute a nullity in so far as she is concerned. Nothing has transpired which estops Emeline Peer from saying that those words are a nullity, in so far as making her a party is concerned. There is authority for the addition of the names of terretenants through the various writs of Sci Fa. that have been issued, but there is no authority for the adding of the name of a defendant who was unnamed in the original transcript.

It will be noticed that the cases above cited go upon the ground that the wife is not a party to the proceeding. Some emphasis is placed on the fact that the transcript says "parties all present" and it is argued that "Emeline Peer" must, therefore, have been present at the trial before the justice. But why should we so conclude? That language is as readily satisfied by the fact that S. H. Killen and D. M. Peer-who are indeed parties-were present, as by the fact that some unnamed person was also present with them. If we are not permitted to say that any persons except S. H. Killen and D. M. Peer are parties to the judgment, we are bound to construe "parties all present" as having reference to them alone; and especially is this conclusion warranted when the justice's transcript actually refers to "defendant" in the singular number.

And now, 27 August, 1910, after due consideration, the rule granted on the 5th day of February to show cause why the name of "Emeline Peer" appearing in the judgment at No. 727 May Term, 1894, and in all sub

sequent proceedings thereon should not be stricken off at the cost of the plaintiff is made absolute. The rule for judgment for want of a sufficient affiidavit of defense is discharged.

CHARLES F. LEE vs. CAROLINE HAMILTON.

Tenants in Common-Act June 24, 1895, P. L. 237-Effect Thereoj-Judgment Against Tenant in Possession-Equitable Rights of Co-tenant,

The Act of June 24, 1895, P. L. 237 furnishes effective and highly necessary remedial legislation for the adjustment of the rights of tenants in common in relation to the use and occupation of property held jointly.

In partition proceedings a tenant in common is entitled to the amount of his proportionate share of rent of the land regardless of a judgment entered against the co-tenant in possession.

The lien of a judgment is subject to all the equities which were held against the land in the hands of the judgment debtor at the time the judgment was rendered, and these will be protected by the courts of equity as against the judgment lien, so that the latter may be confined to the interest remaining in the debtor after due recogniion of the outstanding equities in their proper order.

Partition-Master's Report-Counsel Fees-Act of April 24, 1864, P. L. 641.

A master in partition has no power to allow any fee to the plaintiff's attorney. The compensation is for the plaintiff and must be taxed by the court in accordance with the Act of April 27, 1864, P. L. 641.

The "reasonable allowance" for counsel fees contemplated by the act does not include expenses of adversary proceedings resulting from a defense to plaintiff's demand for partition, or from any other cause, but only reasonable compensation for services of counsel necessarily rendered for the common benefit of all the parties in interest.

Exceptions to master's report. In the Court of Common Pleas of Lackawanna County. No. 2 October Term, 1911. In Equity.

H. D. Carey, for Plaintiff.

R. A. Zimmerman, for Defendant.

Edwards, P. J., June 10, 1912. The first exception to be considered relates to the meaning and effect of the Act of June 24, 1895, P. L. 237, entitled "An Act to pro