
    Steinman v. Feldser, Appellant.
    
      Judgment — Testing validity of — Feigned issue — Equity — Bond —Act of July 9, 1897, P. L. 237.
    
    Where a junior execution creditor instead of filing a bill in equity to test the validity of a judgment and execution senior to his own, files a petition showing on its face that he was attempting to take advantage of the provisions of the Act of July 9,1897, P. L. 237, and he fails to file a bond provided by the act, all proceedings under the petition are nugatory and void.
    Argued Nov. 14, 1916.
    Appeal, No. 24, Oct. T., 1916, by defendant, from judgment of O. P. Lancaster Co., Jan. T., 1912, No. 283, on verdict for plaintiff in case of A. J. Steinman, Administrator of Susan S. Steinman, Deceased, v. Lewis Feldser.
    Before Orlady, P. J., Porter, Henderson, Head, Kephart, Trexler and Williams, JJ.
    Reversed.
    Feigned issue to determine the validity of a judgment.
    From the record it appeared that the plaintiff was a judgment and an execution creditor of one James L. Wilson, junior to the defendant, who held an earlier judgment on which he had issued an attachment, the issue was granted and framed without the plaintiff having filed a bond as prescribed by the Act of July 9, 1897, P. L. 237.
    Verdict and judgment for plaintiff. Defendant appealed.
    
      Error assigned was in assuming jurisdiction and granting an issue without requiring the plaintiff to file a bond.
    
      B. E. Davis, for appellant.
    — The court below was without jurisdiction: Page v. Williamsport Suspender Co., 191 Pa. 511; Drove Yard Co.’s App., 123 Pa. 250; Phelp’s App., 98 Pa. 546; Meurer’s App., 119 Pa. 115; Keyer v. Cosmopolitan S. & L. Assn., 8 Dist. Rep. 708.
    July 13, 1917:
    
      John E. Malone, with him J. Hale Steinman, for appellee.
    — The court had jurisdiction: Page v. Suspender Co., 191 Pa. 518; Slingluff v. Sisler, 196 Pa. 121; Sochers’ App., 104 Pa. 609; Johnson v. Price, 172 Pa. 427; Wagner v. Fehr, 211 Pa. 435; Dinner v. Van Dyke, 25 Pa. Superior Ct. 433; Hutchinson v. Dennis, 217 Pa. 290.
   Opinion by

Head, J.,

The judgment appealed from was entered on the verdict of a jury rendered in the trial of a feigned issue. The parties contesting were junior and senior judgment, creditors of one Wilson. The issue was framed on,the petition of the junior creditor. We shall briefly state the important facts as we gather them from the record.

The judgment of the defendant appellant was entered in the Court of Common Pleas of Lancaster County March 19, 1912. It was in every way regular on its face. It remained unchallenged from that date until April, 1915. On the 20th of February, 1915, an attachment execution was issued on this judgment in which the Southern Mutual Insurance Company was made garnishee. To the January Term, 1915, of the said court Susan Steinman, the appellee’s decedent, obtained a judgment against Wilson and on March 11, 1915, an attachment execution was issued on this judgment with notice to the garnishee already named. On the 24th of April, 1915, the junior creditor filed a petition in the Court of Common Pleas reciting these facts and further that petitioner “is informed, believes and expects to prove that the judgment note given by Wilson to Feldser is invalid and fraudulent and that the same was given without consideration and with intention to hinder, delay, embarrass and defraud creditors, and petitioner expects to be able to establish these facts.” The petitioner prayed for “a rule tO' show cause why the validity and bona fides of the above-mentioned judgment should not be inquired into and an issue granted for that purpose.” A responsive answer was filed denying the allegations of fact in the petition and declaring that the judgment attacked rested on a valuable consideration and was a valid and legal obligation. The court made the rule absolute and directed that an issue be framed to try “whether the note given by Wilson to Peldser on March 19, 1912, was given to defraud, delay and hinder the creditor’s or any of the creditors of Wilson and whether it was without consideration.”

It seems to us plain enough that any application that could be made to interfere with the ordinary incidents of a judgment that had been on the record for three years would necessarily invoke the equitable powers of the court. Without the aid of equity, even the court in which the judgment had been entered would be powerless to interfere with it. Even where the defendant comes into court and asks to have a judgment opened in order that he may be permitted to defend against it, he appeals to the equity powers of the court. This has been so often declared, it would be useless to cite the authorities. But that is not the present case. The petitioner in this case was a stranger to the judgment in question and it is not competent for such stranger to ask to have a judgment opened. In Campbell v. Sloan, 62 Pa. 483, Mr. Justice Shahs wood said: “Under no' circumstances could junior judgment creditors have any standing in court in their own names to open a judgment against their debtor and be let into a defense on the merits. They could attack it collaterally for fraud or for some matter arising subsequently to the entry of it as payment or a release, which would show that it was kept on foot in fraud of them, and that only by an issue to try the-question.”

We do not understand the principle thus declared has éver been departed from. Nor have Ave a case where a bill in equity has been filed invoking the equitable power of a court to restrain tbe plaintiff in a judgment at law from the execution or enforcement of such judgment where such proceedings would work a fraudulent injury to the plaintiff in the bill. The language of the petition, of the rule and of the final order of the court awarding the issue, makes it plain there was an attempt to take advantage of the provisions of the Act of July 9, 1897, P. L. 237. The statute on its face was evidently intended to provide the procedure by which a party, situate precisely as the petitioner in this case was, might invoke the equitable power of the court to relieve against a judgment alleged to have been fraudulent and given to hinder, delay and embarrass creditors. Had the statute been complied with, the junior creditor could have properly proceeded to try out the issues of fact tendered in his petition. But the statute declares “That before the court shall grant such rule to show cause, the applicant therefor shall give a bond, with sufficient surety to be approved by the court, in such amount as the court shall direct, conditioned that all costs incurred in such proceedings and damages sustained by the plaintiff in such judgment by reason thereof, shall be paid if the rule be discharged or the proceedings dismissed.”

In Page v. Williamsport Suspender Company, 191 Pa. 511, the Supreme Court, after declaring the act to be constitutional, said: “The act is mandatory that the bond shall be filed before the rule is granted, and the proceedings, therefore, were irregular and should have been quashed, if the objection had been made in time.” The learned court below therefore was right in holding the proceeding could not be sustained under the Act of 1897. But w;e think he fell into error when he assumed, that because prior to that statute the courts were invested with equitable jurisdiction to prevent the execution of fraudulent judgments, the statute could be ignored and the plaintiff could invoke the equitable powers of the court without conforming with the procedure which the statute declared should be followed in cases of that kind. It is not necessary to hold that the statute afforded a new remedy which was either concurrent with or exclusive of the remedy that existed before. As we view it, it was a perfectly competent legislative act, the purpose of which was to define the procedure to be followed by a plaintiff who sought the equitable relief that, under prescribed circumstances, a court of equity could give. The legislature had the same right to say that in such an application to the court a plaintiff must give security as to say that in an application for an injunction a bond must be filed. We are not to be understood as saying or intending to say that the equity power of a court, to deal with a judgment at law obtained by collusion or fraud, is now other than or different from what it was before the passage of the Act of 1897, supra. We do not hold that such judgment may not be attacked collaterally in any of the several recognized ways in which such an assault may be properly and successfully made. For as long ago as Gallup v. Reynolds, 8 Watts 425, Chief Justice Gibson said: “Our practice therefore is to try collusion by a collateral issue, but matter of defense by an issue in the cause.” This statement, of the ancient practice of the courts of Pennsylvania, was cited with approval by Chief Justice Woodward, in Cochran v. Eldridge, 49 Pa. 365.

What we hold and all we decide is this. By the Act of 1897 the legislature has declared that when a certain kind of intervention by a court of equity is sought; when the court is asked to award a particular issue defined in the statute; the procedure prescribed by the act must be followed. It has been declared by the highest authority the legislature did not overstep any constitutional limitation in enacting the law. It must be obeyed therefore in letter and spirit. To permit a particular petitioner to secure the exact relief described in the act without complying with its mandatory provisions, would come perilously near ignoring or nullifying the clearly expressed legislative will.

We are of opinion therefore the learned court below should have refused the rule on which the entire proceeding rested. This being true, all that followed was nugatory.

The judgment is reversed.  