
    BREITENBACH VS. GABLE.
    Where the court below openc, or refuses to open a judgment, a writ of error does not lie, unless expressly provided by statute.
    Error to the Court of Common Pleas of Schuylkill County. No. 5, January Term, 1868.
    Gable brought suit against J. R. Breitenbach, W. S. Breitenbach and Samuel Sheetz, as Breitenbach & Co., to Sept. Term, 1861. The writ was served on-Samuel Haak, their agent, and on 26th October, 1861, judgment was taken against defendants for want of an appearance for $125.51. Judgment of revival was taken in 1887, for default of an appearance on two nihils, and a ji.fa. and ven. ex. were issued, and the property of John R. Breitenbach, was levied on and condemned. He then took a rule to set aside the executions, and to open the judgment, on the ground that he liad been in the service of the United States, when the judgment was taken. The court refused to grant the rule in the following opinion, per
    Ryon, P. J.
    The defendant, John R. Breitenbach, sets out in his affidavit that he was regularly mustered into the military service for three years, under a requisition from the President of the U. S., and was in the s ervice on the 31st of August, 1861, when the original summons was issued in the above case. That W. S. Breitenbach died in Au gust 1862, possessed of real estate, and leaving issue. That on Sept. 3rd, 1866, the plaintiffs issued a sci. fa. to revive the original judgment against the three defendants by name. Upon two returns of nihil, judgment was entered against the defendants. Upon this judgment execution was issued, and levy made upon the interest of John R. Breitenbach, one of the defendants. The defendant claims that the judgment was irregularly entered against him, on account of his enlistment in the military service, and should be stricken off.
    We do not agree with him in this construction of the act of Assembly, regarding as a personal privilege which may be waived, and under the circumstances of this case should be so treated.
    Breitenbach then took a writ of error; and Thomas R. Bannan, Esq., in his behalf argued, that:
    the judgment was void as Breit cnbach was in the military service; Breitenbach vs. Bush, 8 Wright 313; Cadmus vs. Jackson, 2 P. F. S. 306. As one of the defendants died before the sci.fa. was issued, the revival was void; In re Dohner’s Estate, 1 Barr 104; Nicholas vs. Phelps, 3 H. 40; Latshaw vs. Steinman, 11 S. & R. 367; Armstrong’s Appeal, 5 W. & S. 356.
    As the judgment was joint, the execution should have been against all the defendants; Stiles vs. Brock, 1 Barr 215; Grenell vs. Sharp, 4 Wharton 344; Shaffer vs. Watkins, 7 W. & S. 228; Huston vs. Mateer, 16 S & R. 417. The personal representatives oi the deceased defendant should have been warned; Dohner’s Estate, 1 Barr 217; Brown vs. Webb, 1 Watts 411 Act of Feb’y 24th, 1834.
    
      William B. Wells, Esq., contra:
    
    The death of W. S. Breitenbach was unknown to the plaintiff, it is not suggested on the record ; and will not be considered by this Court, under such circumstances; Breitenbach vs. Bush, 8 Wright 313. The exemption as to persons in the military service does not apply to partners; Fife vs. Keating, 2 Browne 135; Bonsall vs. Comly, 8 Wright 448. A judgment regular on its face cannot be impeached on a writ of error; Warder vs. Tainter, 4 Watts 270; Chambers vs. Carson 2 Wharton 372. The interests of the other defendants had been sold out previously, and therefore thefi.fa. was not issued against them.
   The decision of the lower court was affirmed by the Supreme Court on February 3rd, 1868, in the following opinion, per

Sharswood, J.

It has been so often held in this Court that a writ of error will not lie to the decision of a Court of Common Pleas setting aside or refusing to set aside a judgment or execution upon some matter of fact not appearing on the record; that the doctrine ought to be considered perfectly at rest. Whether the Court below decided the law correctly or not, must depend upon how they found the facts involved in it. They are as competent to pass upon them as this Court, and their decision cannot be reviewed: Righter vs. Rittenhouse, 3 Rawle, 282; Withers vs. Haines, 2 Barr, 435; Lewis vs. Amor, 3 Barr, 460; Bruce vs. Wightman, 5 Casey, 335; Rogers vs. Whitely, 2 Wright, 137; Henry vs. Brothers, 12 Wright, 70. Where a Court of record acts on extrinsic evidence, the presumption is that everything was done rightly and according to law: Brown vs. Ridgway, 10 Barr, 42. The determination of all such questions rests in the sound discretion of the Court, and though the facts be actually spread on the record, it will make no difference. In McKee vs. Sandford, 1 Casey, 105, upon a rule in Court below to open a judgment, a statement of facts was agreed to by the attorneys with a stipulation that either party might take a writ of error, yet it was held that it did not give us jurisdiction of a question which the law places under the discretion of the Courts of original jurisdiction. We see no error in this record of which this plaintiff in error has any right to complain.

Judgment affirmed.  