Opinion by
Mb. Chiee Justice Mebcub:The alleged error is the refusal of the court to order judgment for want of a sufficient affidavit of defense. This is a scire facias quare executionem non on a.judgment obtained against the Pittsburgh Southern Railway Company, for dam*274ages in taking the lands of plaintiff for right of way by said company.
The claim now is to collect the judgment from the other defendant, now brought into the record for the first time as the successor of the rights and franchises of the former company.
The affidavit of claim, has taken a very wide range. Many things therein averred we think unnecessary to discuss and decide now.
The affidavit of defense, inter alia, avers that the claim of the plaintiff was for the entry upon and occupation of a right of way through his lands, and the construction of a railroad thereon by the Pittsburgh, Castle Shannon, & Washington Railroad Company; that, being unable to agree with the plaintiff as to the compensation to.be made on account of said entry and occupation, it, before or at the time of entering on said lands, tendered to him a bond in the sum of $1,000 with two sufficient sureties conditioned as required by law, which bond was accepted and received by the plaintiff or his duly authorized agent as adequate security for such damages as plaintiff might sustain.
That, subsequently, said company with certain other corporations were consolidated with, and merged into, the Pittsburgh Southern Railroad Company; that all the property rights and franchises of said last-mentioned company were, subsequently, at judicial sale, previous to the rendition of the judgment on which this sci. fa. issued, sold to defendant, Thomas M. King; that said King, according to the statute, organized the said Baltimore & Ohio Short Line Railroad Company; that neither it, nor said King, nor the Baltimore & Ohio Railroad Company, were in any way'parties to the aforesaid judgment, nor did they or either of them have any legal notice of the institution or pendency of the action which resulted in said judgment, nor were they in any way represented therein.
It is further averred that, some time previous to the verdict in that case, said King had abandoned and surrendered all that portion of the railroad formerly belonging to the said railroad company upon and over the said lands of plaintiff; and that neither said King nor the Baltimore & Ohio Railroad Company, nor the Baltimore & Ohio Short Line Railroad Company, has ever entered in and upon, or in any way used or operated the said railroad over and upon, the lands of plaintiff, or has ever *275used.or enjoyed any rights or easements or privileges upon or within the same; and by said abandonment and surrender the plaintiff was. and is seised and possessed of his said lands free, clear, and discharged of any claim, occupation, or user of either or any of the said last-mentioned defendants.
At present we must consider all these averments of the defendants to be true. They show that the corporation which entered upon and appropriated the lands of the plaintiff fully complied with the requirements of the Constitution and statute, by giving bond with sureties which was accepted by the plaintiff as adequate security; and that the successor of said corporation,
■ the other defendant, never entered in or upon said land of the plaintiff, but abandoned and surrendered the same; and thaii it never used or enjoyed any rights, easements, or privileges upon the same; and that the judgment, obtained after its acquisition of the railroad and its franchises, was without any notice to it. If these, facts and others averred be proved, it certainly presents a case which should be passed upon by a jury, and the learned judge committed no error in refusing to enter judgment for want of a sufficient affidavit of defense; therefore, the writ of error is hereby dismissed at the costs of the plaintiff, but without prejudice to his right to trial by jury, and a second writ of error after final judgment. /