
    Cake v. Bird. [Priestly et al. v. Bird.]
    A rule was taken on an attorney at law .to compel him to pay money alleged to have been wrongfully withdrawn from the sheriff by him. Evidence was taken on both sides, the rule made absolute, and a writ of error taken to the supreme court, but no bail entered. A rule for an attachment was then granted, to which the defendant answered that the statute of limitations had barred the claim. The court made the rule absolute. The defendant then took a writ of error, which the plaintiff moved to quash on the ground that there was only an interlocutory judgment, and the original writ of error was not a supersedeas. Held, that the judgment should be affirmed.
    May 23, 1888.
    Error, No. 65, July T. 1888, to C. P. Northumberland Co., to review an order mailing absolute a rule for an attachment against J. Adam Oake, an attorney at law, at June T. 1877, No. 139. Trunkey, J., absent.
    On Eeb. 15, 1888, J. Adam Oake took a writ of error to the action of the court in making absolute a rule upon him to pay over money in his hands, reported in the next case above. He did not enter bail, and, on Feb. 27, 1888, O. O. Bird, Exrx., obtained a rule against him for an attachment. To this rule he filed the following answer:
    1. No attachment should issue because the record and all proceedings in the above stated venditioni exponas, was removed to the supreme court by writ of error filed Feb.-15, 1888.
    2. The court had no jurisdiction of the matter and no authority to make the rule absolute as stated in the opinion in said case filed Jan. 28, 1888.'
    3. The money claimed, to wit: $957.90, was paid by Geo. W. Strine, late sheriff of said county, on Nov. 19, 1877, on judgment No. 60, November Term, 1873, which was the first lien against the defendants, John C. Lloyd and J. H. Jenkins, and was paid by the respondent to the plaintiff -in the said suit to the First National Bank of Northumberland.
    4. More than six years having elapsed since the receipt of the said money from the said sheriff and payment of same over to the First National Bank of Northumberland, plaintiff in said judgment, the claim set up by the petitioner, O. O. Bird, executrix of Joseph Bird, deceased, is barred by the statute of limitations, and no writ could be maintained for the same, nor rule granted upon the respondent, after lapse of six years from the receipt of the money, and the petition having been' filed originally for a rule on the respondent on Dec. 14, 1883, more than six years after the receipt of the money, any alleged claim of C. O. Bird, executrix of Joseph Bird, deceased, was "barred by the statute of limitations.
    The court made the rule absolute April 30, 1888, in the following opinion, by Rockefeller, P. J.:
    “ The principal questions in this case were decided in an opinion of this court filed Jan. 28, 1888. On Feb. 15, 1888, the case was removed to the supreme court by a writ of error, but, no bail having-been entered, said writ is not a supersedeas. As to whether judgment No. 60, November Term, 1873, was a first lien against the defendants, John O. Lloyd and J. H. Jenkins, and was received and paid by the respondent to the plaintiff, as alleged in the answer in the present rule, this was all heard, determined and fully disposed of by the court, as appears by the proceedings in this case and the opinion to which I have referred.
    [“ I am of opinion that the statute of limitations is no defence in this case; and, further, no defense or question of that kind was raised at the hearing of the rule to show cause why the money should not be paid. After a large amount of evidence was taken on both sides and read, considered and decided upon by the court, and the rule made absolute, it is now too late to plead the statute of limitations, even if that constituted a good defense.] [1]
    
      [“The rule is made absolute and an attachment to issue to attach the said J. Adam Cake for contempt of court in not paying the money in the petition mentioned and set forth, said attachment not to issue if the money is paid within five days from this time.”] [2]
    
      The assignments of error specified, 1, 2, the portions of the opinion included within brackets, quoting them.
    In the supreme court, C. C. Bird, executrix, moved to quash the writ, May 21, 1888, filing the following reasons therefor:
    1. Because a writ of. error issued out of this court to No. 336, of January Term, 1888, to the final decree of the court of common pleas of Northumberland county in the same case by which decree the said J. Adam Cake was directed to return to the court the sum of $957.90 which he had improperly obtained from the sheriff and upon the said writ to No. 336, January Term, 1888, the record is now before this court and the cause is for argument.
    2. Because the said J. Adam Cake failing or neglecting to enter bail, the said writ of error, to No. 336, January Term, 1888, was not a supersedeas; whereupon it was proper for the court below to proceed by attachment at the instance of a party in interest, to compel obedience to said order or decree pending the disposition of the said case in this court, and it is to such award of attachment that the present writ has issued.
    3. Because such attachment, being in the nature of execution process, cannot be interfered with, in the absence of a supersedeas of the original judgment or decree.
    4. Because the attachment awarded by the court for contempt of its order has not actually issued and the said Cake has not been brought before the court and adjudged guilty of contempt; hence, the said order or decree of court, being interlocutory, is not the subject of review in this court.
    5. Because the present writ of error is not founded upon such a final or definitive decree or judgment of the court as may be the subject of review.
    
      S. P. Wolverton, with him J. A. Cake, for plaintiff in error.
    More than six years elapsed after the receipt of the money before any step was taken to recover the money or any claim made that it was not applicable to the lien of the bank judgment. The record does not show that demand was made until the service of the rule in this case. That the statute of limitations was a bar to the proceedings, there can be no question. Downey v. Garard, 24 Pa. 53, 54. See, also, Pittsburgh & Connellsville R. R. v. Byers, 32 Pa. 24.
    A party cannot stop the running of the statute of limitations by his own negligence. Steele v. Steele, 25 Pa. 156.
    Commitment for contempt until a party pay over money not in possession or control of such party at the time of instituting the contempt proceedings, as shown by his uncontradicted affidavit, is void for want of jurisdiction, the court having no power 'to imprison a person for contempt for neglecting or refusing to perform an act which he cannot perform. Adams v. Haskell, 65 Am. Dec. 517; State v. Woofin, 42 Am. Dec. 161; Neel v. State, 50 Am. Dec. 209; Exparte Adams, 59 Am. Dec. 234.
    If a court has no jurisdiction over the subject matter, its subsequent action in punishing for contempt is extrajudicial and void. Walton v. Develing, 61 Ill. 206.
    Disobedience of an order madé without jurisdiction is not contempt of court, in legal contemplation, though the court or judge making such order, style disobedience of it a contempt. Exparte Grace, 79 Am. Dec. 529.
    
      J. Nevin Hill, with him J. H. Rockefeller, for motion to quash;
    —This writ is irregular and should be quashed. There is probably no parallel case in the books, and we may say, in the language of Mr. Justice Black, in Passmore Williamson’s Case, 26 Pa. 9 : “We do not expect to find in reports so recent as ours those long established rules of law which the student learns from his elementary books, and which are constantly acted upon without being disputed.”
    The writ of error to No. 336, Jan. T., 1888, having been issued, and no bail being given, the court below was free to award execution process to compel compliance with the decree; and, to such award of process, no writ of error would lie, as the party against whom the decree proceeded would be held to have waived his right to except to compulsory process by his refusal to make his first writ a supersedeas. But, suppose the present order or decree is not to be regarded as an award of execution process under the original order or decree, but as a new proceeding for contempt of court, then it is plain that there is here no final judgment.
    The proceedings in cases of contempt are in the name of the Commonwealth, the writ issuing in that way. Com. v. Snowden, 1 Brews. 218.
    In Passmore Williamson’s Case, supra, it was held that every court of competent jurisdiction is an exclusive judge of contempts against itself; but it has been further held that the supreme court may inquire into the jurisdiction and regularity of the proceedings of the lower courts of the state after commitment. Com. v. Newton, 1 Gr. 453.
    If this be regarded as a writ of error to proceedings in the court below for contempt, there being no commitment, there has been no final disposition of the case and the proceedings of the court up to this time are not subject to review. A writ of error will not lie to an interlocutory decree. Gelsinger’s Ap., 14 L. Bar, 5 ; Schwilke’s Ap., 14 L. Bar, 89; O’Hara v. Pa. R. R., 2 Gr. 241; Miles v. Rempublicam, 4 Yeates, 319; Chadwick v. Ober, 70 Pa. 264; Litz v. Kauffman, in the supreme court, 4 Pa. C. C. R. 329.
    Oct. 1, 1888.
   Per Curiam,

Judgment affirmed.  