[Chambersburg,
October 18, 1824.]
DAILEY against GIFFORD.
IN ERROR.
The Court of Common Pleas has no authority to direct the transcripts of judgments, obtained before a justice of the peace, and entered on the records of the court, by virtue of the act of the 19th of April, 1794, to be stricken off the docket.
It appeared on the return of a writ of error to the Court of Common Pleas of Huntingdon county, that Hailey, the defendant below, being indebted to Gifford, the plaintiff, in about two hundred and fifteeen dollars, gave him five promissory notes, for forty-one, forty-two, forty-three, forty-four, and forty-five dollars, and confessed a separate judgment on each note, before a justice of the peace. Transcripts of these judgments were filed in the Court of Common Pleas, in Jlpril, 1820. The Court of Common Pleas, without notice to the plaintiff, directed that the five transcripts should'be struck off the docket, and the costs paid by the plaintiff. A motion was afterwards made by the plaintiff to reinstate them on the docket, which the court refused; upon which the plaintiff sued out a writ of error.
Shippen and Tod, for the plaintiff in error,
argued, that the Court of Common Pleas had exceeded their power, in striking the tran- scripts of these judgments off the docket. They were confessed before a justice, and placed upon the records of the court by virtue' *73of an act of assembly, which constituted them a lien upon the lands of the defendant. Act of the 20th of March, 1810, sec. 10. Purd. Jib. 2S9. Snyder v. Drum, 1 Binn. 381.
But if the court .had jurisdiction, it decided erroneously. A debtor has a right to divide his debt into as many notes as he pleases. The only mode by which the Court of Common Pleas could derive jurisdiction, was by bringing the record before them by certiorari. But a certiorari would not have Iain in this case, because more than twenty days had elapsed, and because the defendant could not swear the judgment was unjust.
Another ground on which the court was manifestly wrong, was, in deciding against the plaintiff without notice.
At all events, the award of costs against the plaintiff was erroneous. Where a suit is dismissed, for want of jurisdiction, there are no costs, 3 Crunch, 515. 4 Cranch, 46. The effect of the order of the court, if not reversed, will be to make the plaintiff lose his debt; for by striking off all the judgments, the lien is destroyed.
M‘Culloch and Burnside, for the defendant in error,
insisted, that the Court of Common Pleas acted under a legal discretion, which it had a right to exercise. It was a violation of law to enter these judgments before the justice. The whole constituted but one debt, and there should have been but one judgment.
Striking off a judgment,'without notice, is not the subject of a. writ of error.
Per Curiam.
These transcripts were filed by virtue of the act of the 19th of April, 1794, and the plaintiff had a right to have them filed, without the permission of the Court of Common Pleas. When filed, they had the effect of judgments, so far as was neces-cessary for obtaining a lien on the real estate of the defendant, and issuing an execution under certain circumstances. But the record of the judgments,still remained with the justice, who might, in the first instance, issue executions on them. It was so decided by this court, in Drum v. Snyder, &c. Administrators of Selin, 1 Binn. 381. The defendant might have appealed, and carried the causes to the Court of Common Pleas, or they might have been removed to that court by a certiorari, after the filing of the transcripts; but the judges of the Common Pleas could take no cognizance of the judgments, for the purpose of reversing them, unless brought before them by appeal or certiorari. We cannot conceive, therefore, by what authority they could order these transcripts to be struck off the docket, which was, to several purposes, depriving the plaintiff of the benefit of the judgments. It is the opinion of this court, that no such authority existed; and therefore the order for striking off the transcripts, with costs to be paid by the plaintiff, must be reversed; and the records remitted, with a direction to reinstate them.
Order reversed, and records remitted, with directions to reinstate the judgments.