
    WACHTER’S CASE.
    Where an acoonnt has been submitted to an auditor and passed upon, a party is not entitled to a review under Act of 1840, of any matter passed upon by the auditor.
    A scire facias may be'issued upon a certificate of the Orphans’ Court showing a balance due by the Executrix.
    Such certificate is within the spirit of the affidavit of defence law, and in such case, judgment for want of affidavit may be taken against an Executrix.
    Such a judgment is a personal liability of the Executrix, and her individual property may be attached.
    No appeal lies from the refusal of the Court to open a judgment for want of an affidavit of defence.
    In an attachment execution, where defendant resides within the county, his residence must be pleaded.
    Where judgment upon the answers is entered against the garnishee, the original defendant cannot take an appeal.
    Judgment for money had and received, was taken for default of an affidavit of defence.
    The judgment .will not be reversed for the nonjoinder of the husband, where the coverture of the wife at the time of the judgment does not- appear of record.
    Appeal from the Common Pleas of Schuylkill County, No. 188 January Term, 1877.
    
      Appeal by F. J. Wachter and Mary, his wife, in right of Mary Wachter, Executrix of Lorenz Fisher, deceased.
    Loreuz Fisher died in 1851, leaving a widow, Mary and six children, to whom' he devised his estate. Nicholas Graber married Mary, one of the children who died having devised her whole estate to her husband. The widow and Fidel Fisher were executors of Lorenz Fisher: Fidel Fisher having filed an account, applied to the court and was discharged ; leaving th¿ widow sole executrix. The executrix filed several accounts to which Graber filed a number of exceptions. On July 11, 1867 the Orphans' Court made an order appointing Charles D. Hippie, Esq., Auditor, “to audit, restate and resettle several accounts aforesaid.” On the same day the Executrix filed another account which was agreed to be passed upon by the Auditor. On April 13, 1868, the Court confirmed the report of the Auditor from which the following extract is taken :
    “However at the last meeting, when quite a number of witnesses were examined, all of the evidence having been reduced to writing, the counsel for both exceptant and accountant mutually agreed that the fourth and supplemental accounts should be audited, restated and resettled, thus : Nichalas Graber, the exceptant, is to be allowed the sum of $800 for the maintenance, &o., of his wife, Mary Graber, during minority, and during the time she was not a charge upon the estate of said deceased ; and he is allowed a credit for the sum of $150 for an overcharge in the account agaiust his wife- for tuition, &c., making in all the sum of $950, which amount is to be placed to the individual credit of said Nicholas Graber, out of said estate. The Administratrix is to be charged the sum of $1083 in the accounts, which it is alleged was left out before, erroneously, to the credit of all the heirs, together with interest on that amount, from the 3rd day of November, A. D. 1854, to February 11th, 1867, which amounts to $796. She is to be charged in her accounts with further sum of $150, agreed upon, by and between counsel. And the said Administratrix is to be charged in her accounts with the additional sum of $24-5, for stock of saving fund taken out by her. Hence we see that, the Administratrix is to be charged in her account in favor of .the estate, the sum of $2,274 in addition to what she has already charged herself with, and she is to be charged in her account, the sum of $950 in favor of the individual account ol Nicholas Graber, one of the heirs and legatees of said estate, making a total aggregate of $8,244. Your Auditor is not prepared, nor is he called upon, to say that these charges agreed upon to be correct, were intentionally omitted. But surely, from the long period, of time that has passed away since the death of Lorenz Fisher, the .-number of different persons who have kept the account from time to time, and the very loose manner in which they were kept, there was a lack of due diligence and care in the management of the estate and that therefore the Administratrix should pay the expense of this audit.”
    On February 5, 1870, certificate of the balance due by the Executrix as per her administration accounts was filed in the Common Pleas to No. 396, March Term, 1870, and on Feb’y 7,1870, a Scire Facias sur certificate from Orphans’ Court was issued to No. 403 March Term, 1870, entitled as follows: “Nicholas Graber vs. Francis Joseph Wachter and Mary, his wife, in the right of said Mary, late Liemmers, late Fisher, Executrix of Lorenz Fisher, deceased.” The Sheriff returned served on Mary Wachter, and “nihil” as to Francis Joseph Wachter. An appearance was entered for Mary Wachter.
    On April 4, 1870, “the Court ordered judgment to be entered in favor of the plaintiff and against the defendant, for default of an affidavit of defence.” Graber then sued out an Attachment Execution to No. 450 June Term, 1870, with notice to Edward and Fidel Fisher. The suit was entitled the same as the original suit, as before stated, but the interrogatories were filed and the answer admitted an indebtedness due to Mary Wachter individually and not as executrix. The attachment execution was served on the garnishees and non est inventus as to Mary Wachter and' F. J. • Wachter. Judgment was taken against the garnishees on Oct. 31, 1870.
    On March 27,1871, Mary Wachter presented her petition for a review to the Orphans’ Court but the Court dismissed the petition filing the following opinion by
    
      Green, J.
    The petition of Mary Wachter, late Mary Fisher, Executrix of Lorenz Fisher, deceased, setting forth certain alleged' errors in the report of C. D. Hippie, Auditor, was presented to the Court on the 27th March, 1871. She asks that a bill of review may be granted and a rehearing ordered of the- specific items which she alleges to be erroneous.
    The Auditor was appointed on the 11th of February, 1867, and his report was made to the Court in April, 1868. The report shows that the Auditor held numerous meetings, at which the petitioner was present, either in person, or by attorney, and that the items alleged to be erroneous were all passed upon by the Auditor and agreed to by all the parties. No exceptions were made to the report, and it was in due time confirmed absolutely. After the final confirmation of the report, the amount found due to Nicholas Graber, to wit: $950, was certified into the Common Pleas, and a Fi. Fa. issued thereon to No. 403, March Term, 1870, which was duly served upon the said Executrix, under which judgment was duly entered against her. Under these circumstances, is she entitled to a bill of review under the Act of 13th October, 1840. Ordinarily, the granting of a review is matter of right, when the petition is filed within five years, and sets forth specific errors in the account of an Executrix, Administrator or Guardian, and when these accounts have been passed, and finally confirmed without exception, and without contest. But, when the specific errors alleged, have been excepted to, contested specifically, examined with evidence heard thereon, and judicially determined, in such cases a bill of review will not lie. The matter óf errors alleged, have passed into the domain of res judicata.
    
    The party has had his day in court, he has been heard, and the case has been decided. From the decision of the Court, or Auditor, he has not appealed. He has acquiesced in the decision for three years and more, with full knowledge of what it was. Why shall he have a re-trial ? It is evident the Act of Assembly was not intended to include such cases, it would give to a party two chances instead of one. Nor are we without decisions upon the very point in controverry here. In Cunningham’s Appeal, 2 Pitts. Rep. 177, it is decided that where an administrator’s account is referred to an auditor, who hears the parties, and makes a report, which is confirmed by the Court, the parties .are not entitled to a bill of review under the Act of 13th October, 1840, Purdon’s Dig. Yol. 2, p. 1109 pi. 49. This is decided upon the question before us, and it is needless to refer to other authorities cited, as none of them are inconsistent, or in conflict with the law as we have stated it, or with the decision in Cunningham’s Appeal, nor is it necessary to decide upon any of the other questions presented to the Court. Petition dismissed.
    A rule to open the judgment No. 403, March Term, 1870, was also entered on March 28, 1871, but was discharged on November 22, 1875. On November 5, 1875, the Court granted a rule to show cause why the judgment in this case should not be striken off for matter apparent upon the record to wit; want of jurisdiction. On November 6, 1876, the Court discharged the rule. November 27, 1876, defendant appealed to the Supreme Court, and assigned for error that the Court erred in holding 1st, that the certificate of the Orphans’ Court was valid to show any indebtedness from Mary Wachter, Executrix, to Nicholas Graber. 2nd, that a Sci. Fa. might issue thereon ; 3rd that aSci. Pa. could issue against an Executrix under Act of April 29, 1832. 4th, that a service on Mary Wachter, a married woman, and nihil as to her husband was a sufficient service. 5th, that a certificate from the Orphans’ Court was within the Affidavit of Defence law. 6th, that a judgment could be taken against an Executrix for want of Affidavit of Defence. 7th, that the judgment was valid against the Executrix, Mary Wachter personally.
    
      F. G. Farquhar, Esq., for Appellants argued
    that want of jurisdiction may be taken advantage of at any time; Saddler vs. Slobaugb, 3 S & R. 388: and consent cannot confer in; T. H. Practice, Vol. 1, p. 443; 1 Peters 36; 3 Cains Rep. 129; 12 Johns, 466; 13 Johns, 218; 18 Johns, 18 and 27; Commonwealth vs. Mills, 1 Harris 630. It is ’essential that the powers of an auditor should be set forth; Menges’ Appeal, 7 Harris 221; Bull’s Appeal, 12 Harris 288. The Auditor being appointed to restate the account could not make distribution; Yundt’s Estate, 6 Barr 36; Commonwealth vs. Snyder, 12 P. F. Smith 159.
    
      The claim for Graber tor $800 for maintenance of his (Graber’s) wife is unwarranted in law as against Mary Wachter. The Auditor had no power to declare any amount as due to Graber from the Executrix for that would be making a distribution. As it appears that the attorney for the Executrix agreed to if, there should have been suit on the agreement not by certificate under Act of March 29, 1832, P. Laws 197. The Scire Facias should not have been against the Executrix in her official, but in her private character; Rowland vs. Harbaugh, 5 Watts 365. The Act of April 14, 1851, P. Laws 625, authorizing judgment for want of Affidavit of Defence does not embrace a certificate from the Orphans’ Court. Judgment can not be tafeen against an Executrix for want of an Affidavit of Defence.
    
      John W. Ryon and A. W. Schalck, Esqs., for Graber, argued
    that the refusal to strike off the judgment was not reviewable; White vs. Leeds, 1 P. F. Smith, 189. That Graber could issue the Scire Facias. Act March 29th, 1832, P. Laws 197, Sec. 29. P. Dig. 551, Pl. 216, and this form was approved in McCracken vs. Graham, 2 Harris, 210. The addition of “Executrix” is proper; Commonwealth vs. Snyder, 12 P. F. Smith, 153; or is merely surplusage; and where executrix had full opportunity of knowing the merits of controversy judgment for want of an affidavit may be taken, Bayard vs. Gillespie, 1 Miles, 258. This certificate is within the Affidavit of Defence law, Moore vs. Fields, 6 Wright, 471. Harris vs. Commonwealth, 11 Casey, 416. McCleary vs. Faber, 6 Barr, 477. Hogg vs. Charlton, 1 Casey, 200. Lukenbach vs. Anderson, 11 Wright, 123. The Orphans’ Court had jurisdiction over the account, to make distribution; Ashford vs. Ewing, 1 Casey, 213; Whiteside vs. Whiteside, 8 Harris, 473. And its decree is not void for irregularities, and cannot be questioned in this proceeding. Painter vs. Henderson, 7 Barr. 50; Lockhart vs. John, 7 Barr, 139; Duchess of Kingston’s Case; Smith Leading Cases 991; Gilmore vs. Rogers, 5 Wr., 120; Torrance vs. Torrance, 4 P. F. Smith, 505; Hartzell vs. Commonwealth, 6 Wright 453; Shumate vs. M’Garity, 2 Norris, 38; Waters vs. Bates, 8 Wr., 475; Dixey vs. Lanning, 13 Wr., 146; Yaple vs. Titus, 5 Wright, 202; Billings vs. May, 11 Harris, 191; Herr vs. Herr, 5 Barr, 430; Miltimore vs. Miltimore, 4 Wright, 155.
   On March 31, 1879, the Supreme Court affirmed -the decision of the Court below in the following opinion.

Per Curiam.

The record shows a judgment in the Court below upon a certified transcript from the Orphans’ Court of a balance due by the feme defendant as executrix of Lorenz Fisher, deceased. It is clear that the Court of Common Pleas could not re-examine the decree of the Orphans’ Court upon the administration accounts of the executrix. That the Court had jurisdiction and considering that the auditor was not appointed to make distribution — the error of Court in confirming his report, if there was any, could only be taken advantage oi an appeal. Neither the regularity nor the merits could be impeached collaterally. There' can be no doubt that the transcript was properly filed under the 29th section of the Act of March 29th, 1832, Pamphlet L., 197, and that a scire facias could be issued against the executrix. There was no error in entering judgment for want of an affidavit of defence. The case was within the spirit, if not the letter of the Act of April 14th, 1851, Pamp. L., 625, for the transcript when filed in the office of the Prothonotary of the Common Pleas became for all practical purposes a judgment of that Court, a hen to be revived like other judgments by scire facias. The judgment was beyond question a personal liability of the executrix, if there were no assets of the estate. There may be some irregularities in the proceedings, but after seven years had elapsed before a writ of error was issued — and execution by attachment executed — and no injustice appearing — we will not reverse on mere technicalities. With the record is brought up an appeal from an order of the Court below discharging a rule to open the judgment from which no appeal lies, and the Act of April 4th, 1877. Pamp. Laws 53 does not apply.

Judgment affirmed and appeal quashed.

In the attachment execution, No. 450, June Term, 1870, a rule to open the judgment was also taken on March 28, 1871, and the Court below on November 6, 1876, discharged the rule. F. J. Wachter and Mary Wachter then took a writ of error to the Supreme Court to No. 187, January Term, 1887. Among the errors assigned were that the Court erred in holding that the return of non est inventus was a sufficient service and that after judgment against an Executrix, her individual property could be attached.

F. G. Farquhar, Esq., for Plffs. in Error argued that although since the passage of Act of April 29, 1844, P. Laws 512, service on defendant is not required if he does not live in county in which attachment issued ; yet in such case a return of nil habet is necessary. Murphy vs. Burke; Burke vs. Frick, T. & H. Practice, Vol. I, p. 958, note; a return of non est inventus is not sufficient; Hains vs. Viereck, 2 Phila. Rep. 40; Corbyn vs. Bollman, 4 W. & S. 343.

A Fi. Fa. or an attachment Execution must follow the judgment; T. & H. Practice, Vol. I, p. 977; Act of June 16, 1836, P. Laws 767; Section 35, P. Dig. 745, Pl. 37; hence after judgment against Mary Wachter, Executrix of Lorenz Eisher, an attachment execution against debts owing to Mary Wachter individually could not issue.

J. W. Ryon and A. W. Schalck, Esqs., for Graber argued, that since Act of March 20, 1845, P. Laws 189, Sec., 4, P. Dig., 747 Pl. 45; defendant must show residence. That cases cited by Plff. were decided before Act of 1845 was passed. That Wachter and his wife having left the county cannot complain. That the charge and the lien were against Mary Wachter personally and the attachment was therefore properly issued to attach money due to her individually.

On March 31,1879, the Supreme Court affirmed the decree of the Court below in the following opinion:

Per Curiam.

This was a judgment in the Court below upon an attachment execution. By the 4th Section of the Act of March 20, 1845, Pamphlet L. 189; so much of the 36th Section of the Act of June 16, 1836, as requires service of the attachment on any defendant was repealed except when the defendant is a resident of the county in which the attachment issued. If there was error in this, it was an error of fact and the residence of the defendant in the county should have been pleaded. This writ of error was prosecuted by the defendant below and not by the garnishee, and if there was an error in entering judgment upon the answers it is not for the defendant to take advantage of it. No doubt the judgment on the Scire Facias was a judgment against the executrix personally and her individual property was liable to the attachment. With the record is brought up also an appeal by the garnishee from an order of the Court discharging a rule to strike off the judgment. It is clear that no appeal lies in such a . case.

Judgment affirmed and appeal quashed.

Nicholas Graber had also sued Mary Leimers, afterwards Mrs. Waehter; to No. 8, December Term, 1869, alleging that she collected certain rents of property which had belonged to Lorenz Fisher, of which Graber was entitled to one-fifth, and also for the one-fifth of the rent of a property which was occupied by Mary Leimers. A bill of particulars was filed as follows:

Rents due on Centre street property.................. $720 00

Moneys collected for the use of plaintiff by defendant. , 360 00

$1,080 00

Judgment was taken on March 28, 1870, against defendant for default of an affidavit of defence, Prothonotary to assess damages; under the Act of Assembly of April 14th, 1851, P. Laws 625, Section 14, and the rule of Court, relative thereto.

The assessment was made on April 12,1870, against Mary Leimers, now Waehter, for $636.00 and is as follows :

Amount received by defendant for the use of plaintiff, and amounts due for occupation of estate as per statement filed with narr calculating up to July 1st, 1869, $

Less credits allowed.............................. $

$636 00

On May 23,1870, defendant took a rule to open the judgment for matter of record and on Sept. 10, 1870, the rule was discharged. On Sept. 24,1870, it was suggested, of record that defendant was married to F. J. Waehter, On March 22, 1877, a writ of error was taken to No. 201 January Term; 1877, by Waehter and wife. The errors alleged were that the Court erred in not striking off the judgment, because, 1st. Defendant was a married woman and her husband was not joined. 2nd. The clai m was not such as admitted a judgment for want of an affidavit. 3rd. The bill of particulars was not such as required by law. 4th. The assessment of damages was indefinite and bore no relation to the declaration or bill of particulars.

F. G. Farquhar, F. P. Dewees and Thomas R. Bannan, Esqs., for plaintiffs in error argued that the Act of April 14, 1851, P. Laws 625, being in derogation of the right of trial by jury must be strictly construed; Wall vs. Dovey, 10 P. F. S. 212; Paterson vs. Poindexter, 6 W. & S. 227. Judgment of default was improperly taken; Thompson vs. Shoemaker, 6 W. & S. 179. The bill of particulars was not sufficient as it did not on its face fasten a liability on defendant; Wall vs. Dovey, 10 P. F. S. 212; Hummell vs. O’Donnell, 2 Miles 101.

A. W. Schalck, John W. Ryon and James Ryon, Esqs., contra, argued, that the refusal to open the judgment was not assignable for error; Brightly Digest 811, pl. 77 and 78. The Court below had power to make rules for judgment for want of an affidavit of defence; Vanetta vs. Anderson, 3 Binney 417, and they can best construe their own rules; Ellmaker vs. Franklin Ins. Co., 5 Barr 189; Daily vs. Green, 3 H. 118, 128; Carey vs. Webber, 4 Brewster 62; and this Court will not reverse for a construction not palpably erroneous; Coleman vs. Nantz, 13 P. F. S. 178; Franklin vs. Calhoun, 9 P. F. S. 381; Wickersham vs. Russell, 1 P. F. S. 71. The husband was not entitled to notice; Bering vs. Burnet, 2 Clark 399: Eneu vs. Clark, 2 Barr 234. The Court construes the Married Woman’s Act of 1848 liberally; Cumming’s Appeal, 1 Jones 272; Goodyear vs. Rumbach, 1 H. 480; Sheidle vs. Weishlee, 4 H. 135. The objection is too late; Hutchinson vs. Preston, 2 Pitts 303. The money was made on an attachment execution in 1871. Restitution will not be awarded on a bald legal right against equity and justice; Grant vs. Rodgers, 5 Phila. 132. The Court will not reverse for an alleged irregularity in practice after seven years delay; Crosby vs. Massey, 1 P. & W. 229.

The decision of the lower Court was affirmed on March 31, 1879, in the following opinion by

Sharswood, C. J.

We must presume that the rule of Court relied on by the defendant was in force, as it was recognized by the Court below. Without such a rule there was no pretence of power in the Court to enter a judgment for want of an affidavit of defence. It does not appear by the record that the defendant at the time of the judgment was a married woman. She is stated to' be so in the assessment of damages some time after the judgment, and nearly six months afterwards a formal suggestion of the fact is made on the record. The bill of particulars filed .was sufficiently specific and damages were assessed at a much less sum allowing credits. If there was anything wrong in this assessment the Court below was the proper tribunal to correct it.

Judgment affirmed.  