
    KREAMER vs. PURVIS.
    Staying an execution upon a judgment obtained before a magistrate and removed into the Common Pleas by a transcript is within the discretion of the Court.
    Error to Common Pleas No. 3 of Philadelphia County, No. 167 January Term, 1890.
    This was an action before a Magistrate, by D. M. Kreamer against J. Purvis and J. Neils, for milk sold and delivered to Purvis, for whom Neils was surety. Judgment for plaintiff, and execution, and return of “no goods.” Plaintiff filed a transcript in the Court of Common Pleas No. 3, fi. fa. issued, property of defendant “levied and condemned,” and vend. ex. 
      issued. At this stage of the proceedings, upon application of Neils, the Court below entered a rule on plaintiff to show cause why the said judgment should not be opened and the execution set aside. At the argument of this rule depositions were read on behalf of said Neils, setting forth that he had never been served with the original summons before the magistrate, and had no knowledge whatever of the entry of this judgment, or any of the proceedings in the case, until his property was advertised for sale by the Sheriff under the vend, ex., and that said Neils had a full, complete and meritorious de fense to the claim of plaintiff.
    The Court below refused to open the judgment, but made-the following order : “Execution stayed until the further order of this Court,” which is assigned for error.
    
      William Gorman, Esq., for plaintiff in error,
    cited Moran vs. Stewart, 1 W. N. C., 159; Lacock vs. White, 19 Pa., 495; Boyd vs. Miller, 52 Pa., 431; Burton vs. Sulger, 7 Phila., 407; Dailey vs. Gifford, 12 S. & R., 72,
    
      F. Gaston, Esq., contra,
    
    argued that the staying an execution is within the discretion of the Court, and is not reviewable unless abused; Weidknecht vs. Boyer, 2 W. N. C., 638; Gamble vs. Woods, 53 Pa., 158.
   The Supreme Court affirmed the judgment of the Common Pleas on January 31st, 1881, in the following opinion :

Per Curiam.

' It is true that the Court had no right to open the judgment of • the magistrate, but it must, of necessity, have the power to prevent the abuse of its own process. The stay was not indefinite in any proper sense of the term, but until the further order of the Court. Had it appeared the plaintiff, after a reasonable time, had applied to take off the stay and been refused, there might have been a ground for saying that it was was an apparent abuse of discretion which this Court could •correct.

Order affirmed.  