author: Mr. Justice Elkin,

text:
    Smith v. Pennsylvania Railroad Co., Appellant.

      Negligence — Railroads — Master and servant — Proximate cause.

    In an action against a railroad company by one of its employees to recover damages for personal injuries, the company cannot be charged with negligence in permitting a small piece ol iron or steel to lie in the open space between its tracks in an open repair yard; but if it appears that on account of the crowded condition of the yard and the narrow space between the tracks, the company’s employees were obliged to set a jack under a car the wrong way, so that the foot of the jack had to be set lengthwise instead of crosswise, and that this made the situation at the point of the accident dangerous because of the swinging of the ear, and it appears that the plaintiff stumbled over the material between the tracks in unsuccessfully seeking to avoid the swinging and falling car, a case of negligence on the part of the company is made out for the jury.
    Argued April 15, 1912.
    Appeal No. 203, Oct. T., 1911, by defendant from judgment of C. P. Cambria Co., March T., 1910, No. 71, on verdict for plaintiff in case of Sberman M. Smith v. Pennsylvania Railroad Company.
    Before Fell, C. J., Mestrbzat, Elkin, Stewart and Moschzisker.
    Reversed.
    Trespass to recover damages for personal injuries. Before O’Connior, P. J.
    At the trial it appeared that the plaintiff, a car repairer, was injured in the defendant company’s repair yard in Altoona, on December 28, 1908.
    The plaintiff’s statement of claim was as follows:
    The defendant is now and was at the time of the grievances hereinafter mentioned, engaged in conducting a railroad through Blair and Cambria counties, and was the owner of a large repair yard for the repair of its cars in the county of Blair. That the yard aforesaid was known as The Pennington Repair Yard, and was as the defendant well knew, unusually dangerous because it was not originally intended nor laid out for a repair yard and the tracks were so close together that the employees had not room to safely and properly raise and jack up the cars, that the defendant carelessly and negligently for a long time and at the time of the injuries hereinafter complained of, permitted and caused all of said tracks to be used as a repair yard, well knowing that in raising cars, the employees were obliged to set the jacks the wrong way, so that the foot of the jack which was designed to prevent the jack and its load from tipping, had to be set lengthways of a car instead of crossways, which by reason of the narrow space or passageways between the tracks rendered the work extra hazardous, and by reason of said negligent and dangerous use of said track and of the hazard and danger thereof assumed by the employees and the plaintiff, it then and there became the duty of the defendant to keep the said narrow passage ways free from obstruction so that in case of a falling car, the employees and the plaintiff might avoid the said danger, yet the defendant utterly disregarding its dnty in this behalf did not keep said passageway clear, but carelessly and negligently without the knowledge of the plaintiff piled material for the repair of said cars, to wit, brake beams, etc., in said passage way and thus obstructed the same.
    That track No. 16 ran parallel to a long material platform with a narrow footpath between them, that said pathway was much used by the men in securing material, and was the only means of escape from injury should a car swing and fall in that direction; that the defendant employed in said yard in the repair of its cars a large number of men, that is to say over three hundred employees, and that it was the duty of the defendant to keep and maintain said pathway free and clear of unnecessary obstruction, that its employees might avoid the danger aforesaid, yet the defendant disregarding its duty in this regard negligently and carelessly for a long time permitted or caused repair material to be piled in said pathway and negligently and carelessly without the knowledge of the plaintiff for a long time permitted or caused the snow from said platform to be shoveled and swept into said pathway and on top of and over said material, thus rendering it unsafe and dangerous and obstructing the escape of employees in case of a swinging or falling car.
    That on the 28th day of December, 1908, while the plaintiff was in the course of his employment passing along said pathway in the exercise of due and ordinary care, a car on said track No. 16, jacked up in the manner before described, began to swing and fall toward the plaintiff, observing which the plaintiff attempted to step out of the way, but in so doing, tripped on said material so negligently and carelessly placed by the defendant in said path and so covered with said snow so negligently and carelessly thrown in said pathway by the defendant, and fell and said car fell upon him; that had the defendant kept and maintained said pathway free from obstruction as was its duty to do the plaintiff could easily have stepped out of all danger from said car, but the defendant well knowing the narrow space between the tracks, No. 16 and said platform and the unsafe and dangerous method of raising cars, yet negligently and carelessly without the knowledge of the plaintiff obstructed said path in the manner above described and thus subjected the plaintiff to risks and dangers not incident to his employment and by which he was at said time and place greatly damaged.
    The facts of the case appear by the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $6,000. Defendant appealed.

      Errors assigned were various rulings and instructions.

      May 6, 1912:

      II. W. Storey, for appellant.
    Where the defendant’s act or omission caused injury only by the concurrence of an inevitable accident which could not have been foreseen, he is not liable: McCauley v. Logan, 152 Pa. 202; Brown v. Susquehanna Boom Company, 109 Pa. 57.
    If we are correct in holding that the falling car was the proximate cause then the tripping on the brake bar was the.intervening cause. The plaintiff is basing his recovery on the fact that he could have escaped if the bar had not been in the path. This must have been the intervening cause.
    The rule is that it is not the intervening cause, but the proximate cause which is essential to recovery: Fairbanks v. Kerr, 70 Pa. 86; West Mahanoy Twp. v. Watson, 116 Pa. 344; Schaeffer v. Jackson Twp., 150 Pa. 145; Morrison v. Davis, 20 Pa. 171; Brown v. Susquehanna Boom Co., 109 Pa. 57; McCauley v. Logan, 152 Pa. 202; B. & O. R. R. Co. v. School Dist., 96 Pa. 65; Dannenhower v. Western Union Tel. Co., 218 Pa. 216.

      W. O. Fletcher, with him W. J. Henry, for appellee.
    The defendant was in duty bound to furnish the plaintiff with a place to work that was reasonably safe. The nature and character of the work must of course be considered in determining whether the place is reasonably safe. Likewise the dangers incident to the work must be considered.
    A careful and prudent man would certainly have anticipated that cars were liable to swing and fall, therefore these narrow passage ways, the only means of escape, must be kept free from unnecessary obstruction: West Mahanoy Township v. Watson, 3 Atlantic Repr. 866; Behling v. Pipe Lines, 160 Pa. 359; Sturgis v. Kountz, 165 Pa. 358; McGrew v. Stone, 53 Pa. 436.
   Opinion by

Mr. Justice Elkin,

This case was tried on the theory that the proximate cause of the accident was the brake beam, which it is alleged obstructed the open space, called a passage way, between the track upon which the car was being repaired and the platform where repair materials were stored. If this were the only negligence charged we would be inclined to hold that it was not sufficient, standing alone, to sustain a recovery of damages. It was an open repair yard, containing many tracks, and in making the repairs required it was necessary that the proper materials and supplies should be distributed when used, at different points in the repair yard. Under such circumstances the burden would be upon the party claiming damages to show an unusual and dangerous condition in order to charge the employer with such a breach of duty as to amount to negligence. It would be carrying the doctrine of negligence to an extreme limit to hold that a small piece of iron or steel lying in the open space between railroad tracks in an open repair yard amounted to such an unusual and dangerous condition as to sustain a charge of negligence against the employer. However, in the present case, it was also charged that in raising the car the employees, on account of the crowded condition of the yard and the narrow space between the repair tracks, were obliged to set the jacks under the car the wrong way, so that the foot of the jack which was designed to prevent the car when hoisted from swinging, had to be set lengthwise instead of crosswise, and that this made the situation at the point of accident dangerous. If this charge is supported by evidence the jury would be warranted in drawing the inference that the negligence complained of caused the car to swing apd fall, and if these facts be so found, they would be the proximate cause of the injuries sustained. The injuries were caused by the car which swung to one side and partially tilted over, and the question in the case is whether this was occasioned by the negligence of the defendant company in not providing a proper and reasonably safe place in which to hoist the car for the purpose of making the repairs. If the facts be as charged, that the jacks had to be put under the car the wrong way by reason of the limited space, a fair inference might be drawn that this was the proximate cause of the accident, and that it was negligence under the circumstances. The obstruction in the passageway might excuse the injured party from the charge of contributory negligence in not making an escape from an impending danger which he saw and attempted to avoid, at least it would be for the jury to say whether he did all that could be reasonably required of him under the circumstances. The case was not tried on this theory, but in our opinion the statement of claim would justify such a submission of the facts, when proved, to the jury. We cannot agree that a verdict should have been directed for the defendant on the ground that no negligence on the part of the defendant company was shown, or because appellee assumed the risk under his contract of employment. The case was for the jury, but it was not properly submitted.

The first, second, third, fourth and fifteenth assignments of error are sustained.

Judgment reversed and a venire facias de novo awarded.


source: Caselaw Access Project

license: Public Domain

text:
    Thomas v. Altoona and Logan Valley Electric Company, Appellant.

      Negligence — Street railway — Getting on car — Passenger — Case for jury.

    1. In an action against a street railway company to recover damages for personal injuries to an intending passenger sustained while attempting to get on a car, the case is for the jury where the evidence- is conflicting as to whether the car was moving or not when the plaintiff attempted to get on.

      Negligence — Damages — Permanent injuries — Prior suit between same parties — Record — Evidence.
    2. The fact that damages were claimed for permanent injuries in a former suit between the same parties, does not preclude tho same plaintiff from claiming in a later suit for permanent injuries resulting from another accident, if the plaintiff was restored to good health in the meantime, or if the injuries were to another part of the body, or if it appears that no actual damages were recovered in the former suit because the injuries sustained were caused by an independent contractor.
    3. In such a case the record of the former suit is not admissible for the purpose of attacking the credibility of the plaintiff as a witness.
    Argued April 15, 1912.
    Appeal No. 142, Jan. T., 1911, by defendant from judgment of C. P. Blair Co., March T., 1911, No. 188, on verdict for plaintiff in case of Harry L. Thomas and Amnie Jane Thomas, his wife, v. Altoona & Logan Valley Electric Railway Company.
    Before Fell, C. J., Mestrezat, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Shull, P. J., specially presiding.
    At the trial it appeared that the plaintiff, Annie J. Thomas, was injured on June 4, 1909, while attempting to get on one of defendant’s cars. The evidence was conflicting as to whether the car was moving when the plaintiff attempted to get on.

      Counsel for defendant offered the record of a suit of Harry L. Thomas and Anna Jane Thomas instituted to No. 5, Oct. T., 1897, wherein Harry L. Thomas and Annie J. Thomas, his wife, were the plaintiffs and The Altoona and Logan Valley Electric Railway Company, defendant, in which the cause of action was trespass for personal injuries, alleging permanent disability. The record also showing that a nonsuit was entered and the case appealed to the Supreme Court, where the judgment was affirmed.
    This is for the purpose of showing that the parties plaintiff to this action instituted a similar suit some twelve years ago alleging as the cause of action, identically the same injuries as attributed to the company in this instance; and further for the purpose of showing that at that time permanent disability was claimed.
    This offer was objected to because this action is based upon an alleged injury in 1893, and is too remote to be introduced in these proceedings.
    By the Court: The objection is sustained, the evidence rejected and we will seal a bill for the defendant. (1)
    This record is also offered for the further purpose of attacking the credibility of the plaintiff in this action.
    By the Court: The former ruling is maintained and a bill sealed for the defendant. (2)
    Defendant presented these points:
    3. —If the jury believe the plaintiff instituted a suit for personal injuries against this same defendant and then claimed that she was permanently injured and incapacitated from work for substantially the same causes as she now claims, then she cannot recover.
    Answer — Refused. (4)
    4. —If from all the evidence, the jury believe that the .plaintiff is feigning any of the ailments for which she now claims damages, then they are warranted in finding a verdict for defendant.

      May 6, 1912:
    Answer — Refused. (5)
    5. — Under all the evidence and the law the verdict must be for the defendant.
    Answer — Refused. (6)
    Verdict and judgment for Henry L. Thomas for $690, and for Annie Jane Thomas for $1,500. Defendant appealed.

      Errors assigned, among others, were (1, 2) rulings on evidence quoting the bill of exceptions (4-6) above instructions quoting them.

      Thomas E. Greevy, with him E. G. Brotherlin, for appellant.

      W. I. WoodcoeTc, with him J. Lee Plummer, for appellees.
   Opinion by

Mr. Justice Elkin,

The negligence charged in this case is that the car was suddenly started before the injured party, an intending passenger, had time to safely board it, which she was attempting to do when the injuries complained of were sustained. This, it is alleged, resulted in throwing the intending passenger to the street and caused the injuries for which damages are claimed. On this branch of the case the defense was that the plaintiff attempted to board a moving car, and if so, there could be no recovery. The evidence on this controlling question is, to some extent, contradictory, but it was clearly for the jury, and it would have been error not to submit it. Two of the assignments of error relate to the refusal of the court to admit in evidence the record of a former suit brought by the same parties against the same company for injuries of like character alleged to have been sustained many years before the happening of the accident in the present case. The action in the former suit was brought in 1897 for injuries sustained in 1893. The theory relied on to justify this offer is that the plaintiffs claimed damages for permanent injuries then, and should not be permitted to recover for permanent injuries now. There was no recovery in that case because the court below and here held that the injuries were caused by an independent contractor for whose negligence the railway company was not liable: Thomas v. Railway Co., 191 Pa. 361. It is difficult to see how a claim for damages, not sustained, in a suit for injuries suffered in 1893, can be a bar to a recovery for injuries resulting from entirely different negligent acts in 1909. The fact that damages were claimed for permanent injuries in the former suit does not preclude the same plaintiff from claiming for permanent injuries in the present suit, if, as the facts show, the party was restored to good health in the meantime. Then, again, it might very well be, that a party who had suffered permanent injuries to one part of the body at a former time, could be permanently injured in another part of the body at a subsequent time. In the present case the particular injuries relied on to sustain a recovery were entirely different from those set out in the former suit, except as the injuries in both cases affected the nervous system. But all of these facts were for the jury, and they were fairly submitted. Nor can we agree that the record should have been admitted for the purpose of attacking the credibility of the plaintiff as a witness. That suit was for different injuries resulting from different negligent acts, and the record shows that a recovery was denied on the sole ground that the injuries were caused by an independent contractor. Under these circumstances it would work an injustice to allow that record to be introduced in the present suit for the purpose of showing that the plaintiff was not acting in good faith in seeking to recover damages for different injuries suffered many years later. In addition, it may be suggested that the defendant called witnesses and proved all the material facts connected with, the former suit. The testimony of these witnesses answered every purpose for which the record could have been offered, and therefore no harm was done appellant by refusing to admit it.

We think no useful purpose will be served by discuss- • ing each of the seventeen assignments of error. All of them have been carefully examined, without convincing us that any reversible error was committed by the trial judge. The case on every disputed question was for the jury. It was carefully and intelligently tried. Both sides were represented by able and capable counsel. The trial judge was impartial and fair. The case was clearly presented to the jury and the evidence was ample to sustain the verdict. We can see no reason to disturb it. The opinion of the trial judge in refusing the motion for a new trial covers every feature of the case and is a vindication of the disposition made of it. The assignments of error are all overruled because in our opinion they do not warrant a reversal.

Judgment affirmed.


text:
    Briggs, Appellant, v. Caldwell.

      Wills — Construction — Trust and trustees — Life estate — Estate in fee — Power to sell.

    A devise of an interest in the residue of an estate to a trustee for testator’s daughter “with full power to sell and receive moneys, retain and pay to her her portion of my estate in accordance with this will, and as he may think best, also to have power to sell real estate and make deeds of the same,” followed by a gift over, after the death of the daughter, of “whatever remains of real estate or personal property,” does not give to the daughter an absolute fee, but what remains of the trust estate passes after her death under the will of the testator.
    Argued April 16, 1912.
    Appeal No. 270, Jan. T., 1911, by plaintiff from judgment of C, P, Blair Co.? Jqne T,? 1909, No. 184, for defendant on case stated in suit of James Alexander Briggs, a minor by Jane Keating as his next friend, v. Carl O. Caldwell, Matilda Clark and Alfred Clark, her husband, and John D. Caldwell.
    Before Fell, C. J., Mestrezat, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Case stated in ejectment.
    Baldridge, P. J., stated the facts to be as follows:
    An action of ejectment was brought by the plaintiff against the defendant to recover the one-fifth interest in a tract of land in Blair and Frankstown townships, Blair county, containing 92.97 acres. The plaintiff, a grandson of Frances Caldwell Milliken, claimed title to the premises under the will of David Caldwell. The parties to the action agreed upon the facts in a case stated, and stipulated that if Frances C. Milliken received under the will of her father, David Caldwell, an estate in fee simple, judgment should be entered for the plaintiff, but if Frances C. Milliken took a life estate under said will, then judgment should be entered for the defendants.
    That portion of the David Caldwell will which has bearing upon the question in dispute is as follows:
    “Second. I devise to the trustee of my daughter, Frances Milliken, for her use and benefit, the brick house and lot of ground on Mulberry street, Hollidaysburg; also the book-case and books in my front parlor. Also the one-half of all my household and kitchen furniture. Also the sum of five hundred dollars in cash.
    “Third. I give and bequeath to the children of my son John the brick house and lot of ground on which I now reside. Also the old tannery, together with tools and fixtures, sheds, etc., with the right of egress and ingress as at present. Also the out-lot adjoining the river, with stable, etc. Also the one-half of all my household and kitchen furniture. Also the sum of five hundred dollars, to be equally divided between them, share and share alike, the property bequeathed to my grand-children not to be sold or partitioned out until after the youngest child is twenty-one years of age.
    “Fourth. All the remainder of my estate, after the aforesaid, I bequeath and devise as follows: To the trustee of my daughter Frances, for her use, and to the children of my son John, deceased, share and share alike. That is to say, one-fifth to my daughter Frances’s trustee, for her use, one-fifth to my grandson, David Caldwell, Jr., one-fifth to Matilda Caldwell, one-fifth to John D. Caldwell, and one-fifth to Carl Caldwell.
    “Fifth. I hereby appoint John Dean, Esq., of Hollidaysburg, trustee for my daughter Frances, with full power to sell and receive moneys, retain and pay to her her portion of my estate in accordance with this will and as he may think best. Also to have power to sell real estate and make deeds for same.
    “Sixth. After the death of my daughter Frances, I direct that whatever remains of real estate or personal property be divided equally between the children of my son John, share and share alike.” .
    The attorney for plaintiff contends that Frances Milliken, daughter of the testator, was the primary object of his bounty; that she was the first taker, and under the fourth paragraph in the will she received an absolute estate, which could not subsequently be reduced to a life estate; furthermore, that her trustee had the right to consume, sell and dispose of her estate, and that, therefore, she was entitled to a fee.
    The court entered judgment for defendants on the case stated.

      Error assigned was the judgment of the court.

      John M. Snyder, for appellant.
    A devise with a power to give a fee, passes a fee: Hoxie v. Chamberlain, 228 Pa. 31; Second Ref. Presbyterian Church v. Disbrow, 52 Pa. 219; Huber v. Hamilton, 211 Pa. 289; Witmer v. Delone, 225 Pa. 450; Luce v. Harris, 79 Pa. 432; Barrett’s Est., 22 Pa. Superior Ct. 74; Watson v. Smith, 210 Pa. 190; Evans v. Smith, 166 Pa. 625.
    May 6, 1912:

      Marion D. Patterson, for appellees.
    Where subsequent provisions show the nature of the estate, that what might be a fee under preceding terms of the will was intended to be an estate for life or for years, they should be given effect: Sheets’s Est., 52 Pa. 257; Urich v. Merkel, 81 Pa. 332; Kreb’s Est., 184 Pa. 222; Boulevard from Second Street, 230 Pa. 491; Allen v. Hirlinger, 219 Pa. 56.
    It is an active trust where it is within, the discretion of the executors whether a sale of a property devised is necessary: Krebs’s Est., 184 Pa. 222; Shower’s Est., 211 Pa. 297.
    The power to sell does not of itself raise an estate for life to a fee simple: Columbia Ave. Savings Fund, Safe Dep., Title & Trust Co. v. Lewis, 190 Pa. 558.
   Opinion by

Mr. Justice Elkin,

This is an action of ejectment for an undivided one-fifth interest in a tract of land in Blair County. The title depends upon the construction to be given the will of David Caldwell, deceased. The controversy arises under the residuary clause by which the testator gave a one-fifth interest in the residue of his estate to the trustee of his daughter Frances, for her use, and the land in controversy passed under this devise. He then appointed a trustee for this daughter, “with full power to sell and receive moneys, retain and pay to her her portion of my estate in accordance with this will, and as he may think best, also to have power to sell real estate and make deeds for the same.” This was followed by another clause which provides: “After the death of my daughter Frances, I direct that whatever, remains of real estate or personal property be divided equally between the children of my son John, share and share alike.” It should be observed that the residuary-devise of the interest to Frances was in trust for her use and benefit and that the trustee had active duties to perform. He was vested with very large and discretionary powers by the testator. If necessary he could sell and convey the entire estate and consume it all for the support and maintenance of this daughter whom the testator desired to thus protect. The trustee did not deem it necessary to consume all of the estate for the purpose intended and did not sell and convey all of it. The daughter Frances is dead and a part of the interest in real estate held in trust for her still remains to be disposed of. It, therefore, comes squarely within the clause of the will which provides that after the death of Frances what remains of the real estate of the testator shall be divided equally between the children of his son John. The trustee had the- power to sell and convey all of the real estate held in trust, but he did not exercise the power, and as a result there remains the real estate in question, a situation clearly contemplated by the testator, and for which he made provision. In many respects the case at bar is ruled by Allen v. Hirlinger, 219 Pa. 56. The learned court below, after a careful and intelligent review of the authorities reached the conclusion that the daughter Frances did not take an absolute fee in the residuary estate and what remained of it after her death passed under the will of the testator. In this conclusion we think he was clearly right.

Judgment affirmed.


text:
    Sharp, Appellant, v. Levan.

      Contract — Assessment on bank stock — Promise to pay another’s assessment — Statute of frauds — -Damages — Failure to show damages for breach of contract.

    1. In an action by one holder of shares in the capital stock of a national bank against another shareholder, upon an alleged oral promise to pay an assessment and contribute to a voluntary fund required by the comptroller of the currency in order that the bank, which had been compelled to close its doors, might resume business, it appeared that the defendant had promised the plaintiff that if the latter would sign the paper agreeing to pay the assessment on the stock and contribute to the voluntary fund, he would make his stock good, and to take care of him. The plaintiff was bound to pay the assessment to make the stock good, and after he signed the agreement was bound to pay the voluntary contribution to the bank. The defendant paid the voluntary contribution due by the plaintiff, but did not pay the assessment due by him, and thereafter the stock was sold as required by the National Bank Act because of refusal to pay the assessment. Suit was then brought by the plaintiff against the defendant, to recover the aggregate amount of the assessment and voluntary contribution. Held, that the oral promise was the promise to pay the debt of another within the statute of frauds; and that even if not within the statute, no damages resulted to the plaintiff as a result of the breach of the promise to pay the assessment.
    2. In such a case the plaintiff would have to show, in order to recover, that at the time of the sale the stock was worth more than it brought plus the assessment and his share of the voluntary fund. In the absence of such evidence he was entitled- to nothing.
    Argued April 16, 1912.
    Appeal No. 112, Jan. T., 1912, by plaintiff, from order of C. P. Blair Co., Oct. T., 1900, No. 53, refusing to take off nonsuit in case of Albert P. Sharp, now for use of Gertrude M. Sharp v. Isabelle Levan, Executrix of John P. Levan.
    Before Fell, C. J., Mestrezat, Elkin, Stewart and Mosohzisker, JJ.
    Affirmed.

      May 6, 1912:
    Assumpsit for breach of contract. Before Baldrige, P. J.
    The facts are stated in the opinion of the Supreme Court.
    At the trial the court entered a compulsory nonsuit which it subsequently refused to take off.

      Error assigned was refusal to take off nonsuit.

      T. H. Greeny, with him E. G. Brotherlin, for appellant.
    When the leading object is to subserve some purpose of the promisor the statute of frauds does not apply: Nugent v. Wolfe, 111 Pa. 471; Elkin v. Tinlin, 151 Pa. 491; Bailey v. Marshall, 174 Pa. 602; Crawford v. Pyle, 190 Pa. 263; Baxter v. Hurlburt, 15 Pa. Superior Ct. 541; Pizzi v. Nardello, 23 Pa. Superior Ct. 535.
    There was in addition a consideration: Lawrence v. McCalmont, 43 U. S. 426; Follett v. Rose, 3 McLean, 332; Hubbard v. Coolidge, 42 Mass. 84; Hind v. Holdship, 2 Watts 104.
    Statute of fraud and perjuries does not apply to this case: Clark v. Jones, 85 Ala. 127 (4 So. Repr. 771); Pratt v. Humphrey, 22 Conn. 317; Goetz v. Foos, 14 Minn. 265; Ware v. Allen, 64 Miss. 545 (1 So. Repr. 738); Howard v. Coshow, 33 Mo. 118; Brown v. Brown, 47 Mo. 130; Tibbetts v. Flanders, 18 N. H. 284; Wood v. Moriarty, 15 R. I. 518 (9 Atl. Repr. 427); Grim v. Fitch, 53 Ind. 214.

      William, S. Hammond, for appellee,
    cited: Brodrick v. Brown, 69 Fed. Repr. 497; Bidwell v. Ry. Co., 114 Pa. 535; Leavitt v. Mining Co., 1 Pac. Repr. 356; Scammon v. Kimball, 92 U. S. 362; Maule v. Bucknell, 50 Pa. 39.
   Opinion by

Mr. Justice Elkin,

This is an action by one holder of shares in the capital stock of a national bank against another shareholder upon an alleged oral promise to pay an assessment and contribute to a voluntary fund required by the comptroller of the currency in order that the bank, which had been compelled to close its doors, might resume business. The occurrences to which the controversy relates took place in 1894. The oral promise proven at the trial was as follows: “You sign that paper and I’ll make your stock good; I will take care of you.” In order to understand what was meant by the parties and what legal obligation, if any, the promisor assumed, it is necessary to briefly refer to the circumstances under which the promise was made. On account of a large defalcation the comptroller of the currency closed the bank and took charge of its business. The stockholders and creditors were desirous of making some arrangement by which the defalcation could be made good, and the bank be permitted to resume business. A committee, appointed for the purpose, waited upon the comptroller of the currency, with a view of having a plan suggested to accomplish the desired result. The comptroller agreed that if the stockholders would make good the impairment of the capital and assets of the bank by paying an assessment of one hundred thousand dollars, and, in addition, make a voluntary contribution of fifty thousand dollars, the bank might reopen its doors and resume business. The stockholders set about to meet these requirements. Meetings were held and plans discussed for raising the funds necessary to meet the conditions imposed. Sharp attended these meetings, but insisted that his financial circumstances were such that he could not pay the assessment on his stock, or contribute his share to the voluntary fund required, and because he could not meet these obligations, he was unwilling to sign the agreement which embodied the plan for the resumption of business by the bank. It was at this stage of the proceedings that Sharp alleges Levan made the promise hereinbefore set out. After this promise was made Sharp signed the agreement — the other stockholders having previously signed it. Sharp owned sixty-two shares of the par value of one hundred dollars each. The assessment on his stock was sixty-two hundred dollars, and his share of the contribution to the voluntary fund, thirty-one hundred dollars. Levan paid the thirty-one hundred dollars, but did not pay the assessment of sixty-two hundred dollars on the stock. About a year later the stock was sold as required by the national bank laws because of refusal to pay the assessment. This suit was brought by Sharp against Levan to recover ninety-three hundred dollars, being the amount of the assessment on Sharp’s stock and his share of the contribution to the voluntary fund. The theory relied on to sustain a recovery is that it was necessary to pay the sum claimed in order to make the stock of Sharp good, and that this is what Levan promised to do. The defense is two-fold, that is to say, if such an oral promise was made, which is denied, it was a promise to pay the debt of another, and, therefore, within the statute of frauds; and, even if not within the statute, no damages were proved as a result of the breach of the promise to. pay. We think it was clearly a promise to pay the debt of another. Sharp owned the shares of stock, and under the national banking laws he was obligated to pay the assessment, and to the extent of sixty-two hundred dollars at least, it was a debt imposed upon him by law. He was not compelled to pay the thirty-one hundred dollars into the voluntary fund, but when he signed the agreement together with the other stockholders, he assumed this obligation, which the bank could enforce against him as a personal liability. It, therefore, became his debt. It seems perfectly clear, therefore, that if Levan assumed these obligations at all, it was a promise to pay the debt of Sharp. It is true that every promise to pay the debt of another is not necessarily within the statute, and that it is sometimes difficult to draw the line between a promise within and one not within the statute. When the leading object of the promisor is to subserve some interest or purpose of his own, notwithstanding the effect is to pay, or discharge the debt of another, his promise is not within the statute: Bailey v. Marshall, 174 Pa. 602. The general rule is otherwise, and the authority just cited, as well as other cases of like purport, may be regarded as exceptions to the rule. In the present case, it should be noted, that the primary purpose of all stockholders was to protect the bank. The interest of Stockholders as individuals was only incidental to this general purpose. The whole plan was to put the bank in position to resume business. Sharp signed the agreement for this purpose, and no doubt did so because he expected to be benefited as a stockholder. What was true of Sharp was equally true of the other stockholders, including Levan. All of the stockholders, under the plan for resumption, were primarily concerned with the affairs of the bank, and were benefited, if at all, only as their holdings of stock might be appreciated in value by the bank resuming business. They acted in concert for a single definite purpose, and it must be assumed that each stockholder expected to be benefited in proportion to the number of shares held by him. Under these circumstances we are inclined to the view that Levan had no such personal interest or purpose of his own to subserve as to bring his promise within the exception to the general rule. However, it is not necessary to rest the decision on this ground, and we do not do so. Even if it be conceded, which it is not, that the promise was binding upon Levan, appellant has failed to make out a case. What was the legal effect of the promise, if made? It was to make good the stock of Sharp, who was unable to meet the demands made upon him as a stockholder in the emergency. To make his stock good it was necessary to pay ninety-three hundred dollars. If he had paid it himself he would have had an investment of ninety-three hundred dollars, in addition to the original cost of his stock. If Levan made good the stock by advancing the ninety-three hundred dollars, Sharp would owe him that amount of money, which he would be under obligation to pay back with interest before his stock would be good in the sense of being free from the assessment and his undertaking to contribute to the voluntary fund. Certainly Levan, under the promise relied on, was not obligated to pay into the bank ninety-three hundred dollars and have no recourse against Sharp, or the stock which stood in his name, for the amount so advanced. When the stock was sold because of the refusal, or failure, of Sharp, or anyone else, to pay the assessment, the purchaser, to all intents and purposes, stood in Sharp’s place, provided, of course, that the sale was made subject to the payment of the assessment and the obligation to pay the share of the voluntary fund which Sharp had agreed to contribute, which we have no doubt must have been understood by all parties concerned at the time of the sale. If Sharp suffered any loss at all it was because the stock at the time of the sale was worth more than it brought plus the assessment and his share of the voluntary fund. In such event Sharp would have an equity, the value of which could only be ascertained from the evidence. But there is not an item of testimony upon which to base a finding that the stock was worth more than it sold for in addition to the charges against it, or to show the value of any equity that Sharp might have had in it. Appellant entirely failed to prove any damages resulting from a breach of the alleged oral promise, and we cannot see any escape from the conclusion that there was a failure to make out a case. This was the view of the trial judge when the nonsuit was entered, and the learned court below emphasized this thought in a well-considered opinion refusing the motion to take off the nonsuit. We are all of opinion that the case was properly disposed of.

Judgment affirmed.


author: Mr. Justice Mestrezat,

text:
    Spyker, Appellant, v. Wible.

      Public officers — County treasurer — Accounts — Jurisdiction of county auditors — Act of April 15, 1834, P- A 537.

      1. Where a county treasurer assumed office on tbe first Monday of January, 1906, and died on August 2, 1907, and he is succeeded by bis son, and thereafter in 1910, tbe son claimed a certain amount due tbe treasurer by reason of overdrafts against him in tbe year 1906, the son is not entitled to recover from tbe county, because, first, if anything is due from the county, it is due to tbe father and not to tbe son; and, second, the treasurer is con-eluded by tbe auditor’s report made in tbe year 1907, settling the accounts of the county treasurer for tbe year 1906.
    2. Tbe jurisdiction of tbe board of county auditors is limited to an adjustment and settlement of an officer’s accounts for tbe preceding year. The board has no authority to re-open tbe accounts for years prior to tbe preceding year, and re-audit and readjust them.
    Argued April 17, 1912.
    Appeal No. 35, Jan. T., 1912, by plaintiff, from judgment of C. P. Huntingdon Co., Dec. T., 1910, No. 4, on verdict for defendant in case of Ella B. Spyker, Executrix of the Will of G. N. Spyker, deceased, v. E. R. Wible, W. L. Johnston and J. K. Wiley, Commissioners of Huntingdon county.
    Before Fell, C. J., Mestrezat, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Issue on appeal from report of county auditors. Before Woods, P. J.
    The opinion of the Supreme Court states the case.
    Verdict and judgment for defendant by direction of the court.

      Error assigned was in giving binding directions for defendant.

      Thomas F. Bailey, for appellants

      May 6, 1912:

      B. A. Orbison, for appellees.
   Opinion by

Mr. Justice Mestrezat,

In November, 1905, A. W. Spyker was elected treasurer of Huntingdon county for a term of three years, and assumed the duties of his office on the first Monday of January, 1906. Spyker died on August 2, 1907, and his son, G-. N. Spyker, the appellant, was appointed as county treasurer to succeed him. In June and July, . 1906, there was no money in the county treasury with which to pay the county’s current indebtedness, and the commissioners made an arrangement with the Standing Stone National Bank of Huntingdon by which the county treasurer was permitted to overdraw his account. From June 1 to July 6, 1906, under this arrangement, the overdrafts of the county treasurer, as claimed by the appellant, amounted to $5,769.84. In the appellant’s history of the case it is stated “that at the meeting of the auditors of Huntingdon county to audit the accounts between the treasurer and the. commissioners for the year 1906 it was impossible to' detect any discrepancy arising from the overdraft in the Standing Stone National Bank as made by the county treasurer.” The appellant, alleging that the balance against the accountant found by the county auditors who settled the accounts for 1907 was erroneous and excessive, presented a petition to the Common Pleas of Huntingdon County and obtained a rule upon the county commissioners to show cause why they should not issue an order for $3,187.56 to G. N. Spyker, county treasurer, “so as to properly adjust the accounts between the said county commissioner’s office and the county treasurer’s office.” The court made the rule absolute, and directed the commissioners to issue an order to the county treasurer for the amount claimed to be due in the petition, which was done' and Spyker received the money. Subsequently the appellant alleged that there was still a further sum due him on the overdraft, Although not distinctly averred it is clearly inferable from tbe appellant’s history of tbe case that tbe treasurer presented this additional claim for allowance to tbe auditors at tbeir meeting to settle tbe accounts for tbe year 1909. At all events, it appears that tbe auditors refused to allow the claim, and tbeir report having been filed tbe treasurer took an appeal to tbe common pleas. Tbe court framed an issue in which G. N. Spyker was plaintiff and tbe commissioners of Huntingdon county were defendants to determine “whether or not tbe said G. N. Spyker, county treasurer, is entitled to a credit of $2,582.18, claimed by him before tbe said auditors and disallowed by them, which credit appellant alleges began to accrue in bis favor on or about tbe first day of February, 1906, and which credit be alleges existed in bis favor on tbe 3d day of January, 1910.” G. N. Spyker, the plaintiff in tbe issue having died, bis executrix was substituted as plaintiff. On tbe trial of tbe cause tbe court directed a verdict for tbe defendant. Tbe plaintiff has taken this appeal.

Tbe statement of tbe undisputed facts shows that tbe learned court was clearly right in directing a verdict for tbe defendants for at least two reasons. If there was anything due from tbe county on tbe overdrafts it belonged to A. W. Spyker and not to G. N. Spyker, who succeeded him as county treasurer. Tbe overdrafts were made, as conceded, from June 1 to July 6, 1906. During that time A. W. Spyker was tbe treasurer of Huntingdon county and as such disbursed tbe funds of the county on orders drawn by tbe county commissioners. He did not die until August 2, 1907, more than a year after tbe date of tbe alleged overdrafts. It is, therefore, apparent that if tbe county was in debt by reason of tbe alleged overdrafts it was to A. W. Spyker and not to G. N. Spyker, tbe former’s successor in tbe office of county treasurer.

From appellant’s history of tbe case, it appears that tbe auditors of Huntingdon county audited the accounts of the treasurer for the year 1906 at which the county treasurer was represented. At all events, it will be assumed that the county auditors did what the statute required and settled the accounts of the county officers for that year: Schuylkill County v. Boyer, 125 Pa. 226. It must, therefore, be assumed that the accounts of A. W. Spyker and G. N. Spyker as county treasurers for the year 1906 were settled and adjusted by the county auditors at their annual meeting in January, 1907. The report of the auditors filed in the common pleas fixed the amount due from or to both A. W. Spyker and G. N. Spyker. The statute provides that from the time the report was filed it had the effect of a judgment against the officer for the amount found by the auditors to be due the county. From that judgment the county or the officer could appeal within sixty days after the filing of the report. If no appeal was taken, the judgment became final. Thereafter the auditors had no power over it, and the officer was bound by the settlement. Neither the accounts of the officer for the year 1906 nor the-judgment entered on the report of the auditors could, after the expiration of sixty days, be reviewed by the Common Pleas or any other tribunal. All parties were concluded by the judgment unless appealed from. The Act of April 15, 1834, P. L. 537, creates a board of county auditors as a special tribunal,, and confers upon it the authority to adjust and settle the accounts of the treasurer and other county officers. The board possesses all necessary power to bring the parties and witnesses before it, to adjust and settle the accounts, to determine the balance due, if any, and to enforce its collection. If either party is dissatisfied with the result of the audit, he can, within the statutory limit, appeal to the Common Pleas where, on an issue framed for the purpose, he may have the cause tried by a jury. The rights of all parties are amply protected. The jurisdiction of the tribunal, however, is exclusive and the officer cannot in the first instance have his accounts settled and adjusted by the court. This we have held in many cases.

Section 47 of the Act of April 15, 1834, P. L. 537, requires the county auditors to assemble on the first Monday of January in each year and audit, settle, and adjust the accounts of the treasurer and other county officers, and make report thereof to the Court of Common Pleas, together with a statement of the balance due from or to the officer. It is, therefore, apparent that the jurisdiction of the county auditors is limited to an examination and settlement of the accounts of the officers for the year immediately preceding their meeting. They have no authority to adjust the accounts of an officer for any prior year or years, or to reopen the settlement of an account made for any prior year and readjust the account. The manifest intention of the statute is that the accounts of each year shall be settled by the auditors at the close of the year, and that such settlement should become final and conclusive upon the parties unless an appeal to the Common Pleas was taken in accordance with the provisions of the act. Mr. Justice Woodward, delivering the opinion in Northampton County v. Yohe, 24 Pa. 305, 307, says, inter alia: “The board (of county auditors) is to audit the accounts of officers for the year immediately preceding. This is the extent of their jurisdiction as defined by law, and no agreements of the commissioners can enlarge it. If the annual board may reopen the accounts of two years past, they may on’the same principle go back twenty, and the next board may upset their doings, and thus interminable confusion be introduced in place of the statutory system.” We have uniformly put this interpretation upon the statute, and held that the jurisdiction of the board of county auditors is limited to an adjustment and settlement of the officers’ accounts for the preceding year.

The appeal in the present case was taken on March 18, 1910, from the report of the board of county auditors which had settled the accounts of the county treasurer for the year 1909. The authority of that board was limited to an adjudication of the accounts of the officers for the year 1909, and the board had no power to reopen and readjust the accounts for the year 1906. As above pointed out, the errors or mistakes, if any, arose out of the overdrafts for the six weeks immediately succeeding June 1, 1906, and they should have been, and pre-. sumably were, corrected by the auditors who met in January, 1907, and- settled the accounts for the year 1906. Failing to have those errors adjusted by that board, or on an appeal to the Common Pleas from its report, the officer was thereafter concluded, and no subsequent board of auditors had the authority to reopen the accounts for the year 1906 and reaudit and adjust them. The Act of 1834, creating the board of county auditors, conferred no such power, and hence it did not exist in any subsequent board of auditors. It follows, therefore, that the court should have directed a nonsuit for the additional reason that the board of county auditors, sitting to adjust the treasurer’s accounts for the year 1909, had no power to audit and settle the appellant’s claim, and hence the court of Common Pleas, on appeal, was likewise without authority to adjudicate the claim.

The judgment is affirméd.


text:
    Collins, Appellant, v. Phillips.

      Judgment — Judgment by confession — Revival of judgment— Waiver of inquisition — Notice to heirs of defendant — Irregularity —Remedy—Act of 1705.

    1. Where a judgment is entered on a warrant of attorney containing a waiver of inquisition and one year thereafter the defendant dies, and subsequently an exemplification of the judgment containing no suggestion of the defendant’s death is entered in another county, where the defendant owned land, but in which he did not reside and where no other creditor asserts a claim, and thereafter the judgment is revived by scire facias with constructive notice to the defendant’s heirs, although without any substitution if his personal representatives, such proceedings, while irregular, are not void, and the defendant’s heirs cannot thirty-two years after the defendant died and ten years after the land had been sold by the sheriff under the judgment, maintain an action of ejectment against the sheriff’s vendees for the land in question.
    2. In such a case the judgment bound the land and the heirs at law upon whom the title devolved, were the only parties in interest at the time of the revival to be affected with notice. Under these circumstances there was no purpose to serve by raising up personal representatives of the defendant with no duty to perform, and no creditors to protect, simply to be affected with notice in order to give validity to the judgment of revival. Such a case is covered by the act of 1705, 1 Sm. Laws 57, which provides that where lands have been sold by the sheriff upon an irregular judgment, the land shall not be restored to the person against whom the judgment was entered, but restitution only shall be made of the price for which such lands were sold.
    3. Irregularity of selling land without an inquisition must be objected to within a reasonable time, and such reasonable time is before the confirmation of the sale and the acknowledgment of the deed.
    Argued October 9, 1911.
    Appeal No. 147, Oct. T., 1911, by plaintiffs, from judgment of C. P. Greene Co., March T., 1910, No. 125, on verdict for defendants in case of Carrie H. Collins et al. v. William S. Phillips et al.
    Before Fell, C. J., Brown, Mestrezat, Porter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Ejectment for land in Cumberland township. Before Ingraham, P. J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for defendants. Plaintiffs appealed.

      Errors assigned were (1-36) various rulings on evidence and instructions, including binding instructions for defendants.

      James J. Pur man, with him James W. Collins, for appellants.
    The judgment was void. In the case at bar no warning was given the legal representatives of Eobert Henderson, deceased, and no warning was given to his heirs at law. His property was seized by his alleged creditor, sold and bought in by him. He and those claiming under him must abide the consequences of his unlawful act: Steele v. Lineberger, 59 Pa. 308; Hill v. Truby, 117 Pa. 320; Skeels v. Ferris, 1 Lack. Jur. 35; Suter v. Findley, 5 Pa. Superior Ct. 163; Sample v. Barr, 25 Pa. 457; Wood v. Colwell, 34 Pa. 92; Wallace v. Holmes, 40 Pa. 427; Diese v. Fackler, 58 Pa. 109; Handley v. Walsh, 49 Pitts. Leg. J. 285; Duquesne Nat. Bank v. Mills, 32 Pitts. Leg. J. 213; Smith v. Siegel, 1 Woodward’s Dec. 203; Keenan v. Gibson, 9 Pa. 249; Riland v. Eckert, 23 Pa. 215; Taylor v. Gaughan, 4 Lack. Jur. 66; Hoke v. Wentz, 13 York Leg. Rec. 101.
    Execution could not issue. — Beck v. Church, 113 Pa. 200; Smith v. Gosline, 2 Pa. C. C. R. 15.
    Before a judgment can be taken by default the record must clearly and affirmatively show legal service of process : W. B. Ger. Schuetzen Verein & Ben. Assn. v. Schubach, 6 Kulp 136; Bryn Mawr Trust Co. v. Wilkins, 10 Montg. County 101; Huckenstein v. Love, 98 Pa. 518; Bryn Mawr Trust Co. v. Wilkins, 5 Del. County 494; Wright v. Cheyney, 1 Chest. County 237.
    May 13, 1912:
    No one is precluded by a judgment who had not an opportunity to appear and take defense: Morrison v. Mullin, 34 Pa. 120; Rhoads v. Armstrong County, 41 Pa. 92; Mitchell v. Stewart, 13 S. & R. 295.
    If inquisition is not waived or held, sale on fi. fa. is void: Baird v. Lent, 8 Watts 422; Wolf v. Payne, 35 Pa. 97; St. Bartholomew’s Church v. Wood, 61 Pa. 96; Hope v. Everhart, 70 Pa. 231.

      John C. Bane, with him William J. Kyle, of Kyle & Reinhart, for appellees.
    The judgment was not void: Hays v. Shannon, 5 Watts 548; Duff v. Wynkoop, 74 Pa. 300; Shannon v. Newton, 132 Pa. 375; Lengert v. Chaninel, 208 Pa. 229; Colley v. Latimer, 5 S. & R. 211; Martin v. Rex, 6 S. & R. 296; Allison v. Rankin, 7 S. & R. 269; Warder v. Tainter, 4 Watts 270; Sloan v. McKinstry, 18 Pa. 120; Billings v. Russell, 23 Pa. 189; Ziegler v. Schall, 209 Pa. 526.
    The plaintiffs took the land in controversy as heirs-at-law and not as terre tenants. They were mere volunteers and they took only what was left, if anything, after their ancestor’s debts had been paid. And a judgment recovered against their ancestors in his lifetime remained a lien against them, their heirs and devisees, without revival: Horner v. Hasbruck, 41 Pa. 169; Brown’s App., 91 Pa. 485; McCahan v. Elliott, 103 Pa. 634; Shannon v. Newton, 132 Pa. 375; Colenburg v. Ventler, 173 Pa. 113; Shearer v. Brinley, 76 Pa. 300; Baxter v. Allen, 77 Pa. 468; Fidelity Ins. Trust & Safe Dep. Co. v. Sampson, 209 Pa. 214.
   Opinion by

Mr. Justice Elkin,

The plaintiffs are the heirs-at-law of Robert Henderson, who at the time of his death in 1878, was a resident of the county of Allegheny. He died intestate, seised of the tract of land in controversy here. One year prior to his death a judgment by confession upon warrant of attorney, waiving condemnation, inquisition and exemption, was entered of record in Allegheny county. About one year subsequent to his death an exemplification of this judgment was entered of record in Greene county, where the land involved in this action is located. In 1884, more than five years after the death of Robert Henderson, against whom the original judgment had been entered, a writ of scire facias was issued upon it against Robert Henderson, Caroline Henderson, Robert Watson and Mary Watson, his wife, formerly Mary Henderson, described as “heirs of Robert Henderson, deceased.” To this writ the sheriff made return nihil. In 1885, an alias writ of scire facias issued against the same defendants, described in the same way, and to this writ there was another return of nihil. Two months later the court, on motion in writing, entered judgment on said two returns of nihil for $14,500. In 1890, before the expiration of the lien of the judgment revived in 1885, a writ of scire facias was again issued to revive the judgment and continue the lien. To this writ there was also return of nihil. On the same day a writ of fieri facias was issued on the judgment entered by the court in 1885, by virtue of which the land in dispute here was taken in execution and sold at public outcry to the plaintiff in the judgment, who became the purchaser. The sale was completed by the acknowledgment and delivery of a sheriff’s deed in the manner provided by law. The deed was duly recorded so that all parties interested in the land had record notice of the title in Bell, the purchaser, since 1890. In 1900 Bell, for a consideration of $13,500, sold and conveyed the property to the present defendants, who have held title and possession of the same from that time to the present. This action of ejectment was brought in 1910 by the heirs-at-law of Robert Henderson, who died in 1878. In other words, the heirs now claiming made no effort to protect their interest in the land, or to question the proceedings under -which it was sold, or to assert title to it, for a period of thirty-two years after the death of their ancestor, under whom they claim title. The defendants are bona fide purchasers for a large consideration, and if this judgment be reversed, their property will be swept away from them without recourse so far as the record discloses. It is contended for appellants that the sale by the sheriff to Bell in 1890 conveyed no title, it being absolutely void, and if he took no title under that sale, he had nothing to convey. This position can only be sustained, if at all, upon the theory that the sale was absolutely void. This is the controlling question raised by the assignments of error and the principal one to be considered here. While there was an offer to prove that letters of administration upon the estate of Robert Henderson had been granted in Allegheny county in 1878, the exemplification of the judgment entered in Greene county contained no suggestion of his death, nor was there any substitution of his personal representatives in any of the subsequent proceedings to revive the judgment so entered. At no time was there a garnishment of personal representatives in Greene county, and if this fact renders the judgment subsequently entered upon the writs of scire facias, and the sale made pursuant thereto, absolutely void, there would be convincing force in the argument of the learned counsel for appellants. In this connection it should not be overlooked that Robert Henderson was not a resident of Greene county at the time of his death, nor perhaps at any other time, and had no personal representatives in that county. Prior to his death he had taken the benefit of the bankruptcy law and made a settlement with his creditors, so that whatever estate he had accumulated after the proceedings in bankruptcy, was administered in Allegheny county. Whether there were any general creditors claiming against his estate is not disclosed, but it does appear that the only creditor who asserted any rights in Greene county was the plaintiff in the judgment upon which the land in dispute was sold. Henderson had no other property in Greene county, and the judgment entered upon the exemplification there was to all intents and purposes a judgment in rem, against the land in controversy here. When that judgment was revived in 1885, his estate having been administered, and all other liens, if any there were, having ^expired, the only persons in interest to be served with notice, or who could question the validity of the proceedings, were the heirs named in the writs of scire facias. The land had descended to these heirs impressed with the lien of a judgment against their father, and they at any time after five years from his death, could have sold the property discharged of liens. This they did not do, but still held the title when the writs of scire facias issued. They took this title cum onere, and the proceedings against them were in effect de terris. The judgment bound the land, and the heirs-at-law, upon whom the title devolved, were the only parties in interest at the time of the revival to be affected with notice. Under these circumstances there was no purpose to serve by raising up personal representatives of Robert Henderson, deceased, with no duty to perform, and no creditors to protect, simply to be affected with notice in order to give validity to the judgment of revival. The law looks to the substance and not to the form, and the substance of the thing to be done in this particular case was to give notice to the real and only parties in interest at the time the judgment was revived. That the proceedings were irregular, must be conceded; but that the judgment was absolutely void, we cannot agree. It is strongly urged that this view is in conflict with Cadmus v. Jackson, 52 Pa. 295, upon which appellants rely. That case represents the most extreme view expressed by this court upon the question involved, but its authority has never been recognized or extended beyond the peculiar facts of the case upon which it is based. Indeed, in Taylor v. Young, 71 Pa. 81, after a re-argument before the full bench, Chief Justice Thompson, in writing the opinion of this court, said: “Let the last cited case (Cadmus v. Jackson) stand for the class to which it belongs, but let it not become an aggressive principle where it is alien.” It thus appears that within a few years after Cadmus v. Jackson was decided its authority as a rule of general application was questioned and limited by this court. In Cadmus v. Jackson, the judgment was entered against Young on November 26, 1859. He died within a month after the entry of the judgment, and about two months later the levari facias was issued upon which the property was sold. The proceeding was against his estate and his personal representatives were not warned. When the levari facias issued in that case .the personal representatives were the only proper persons to act for and protect the estate of Young, as well as his creditors, and there was every reason why they should be made parties to the proceeding. In the case at bar no such reason existed because the estate of Henderson had long since been administered; all liens except the one upon which the property was sold had expired; and the heirs alone, upon whom the title devolved, were the only parties who had an interest in the land bound by the judgment at the time of the revival. As to these heirs, the judgment against their father continued indefinitely: Konigmaker v. Brown, 14 Pa. 269; Bindley’s Appeal, 69 Pa. 295; Shannon v. Newton, 132 Pa. 375; Colenburg v. Venter, 173 Pa. 113; Ziegler v. Schall, 209 Pa. 526. An heir is a volunteer, not a terre tenant, and only takes what is left of the ancestor’s estate after the debts are paid: Horner v. Hasbrouck, 41 Pa. 169. Again, in Cadmus v. Jackson, the controversy was between adverse holders of title in which the heirs of the decedent were not concerned. Many other questions were involved in that case and this no doubt led the court to say in the later case of Taylor v. Young that it could stand as an authority for the particular facts upon which it was decided, but that it should not be extended so as to make it a rule of general application. A study of our later cases will show that tbe rule has not been extended, but, on tbe other band, tbe disposition of tbe courts bas been to treat sucb judgments as irregular and voidable rather than absolutely void. In Hays v. Shannon, 5 Watts 548, it was held that tbe revival of a judgment which was entered against tbe land of a decedent, by a scire facias against bis heirs, is irregular and erroneous, but not void. Chief Justice Gibson delivered tbe opinion in that case and held that if an execution was issued upon tbe judgment so obtained, and tbe land was sold by tbe sheriff, a good title passed to tbe purchaser, which could not be defeated in ejectment by tbe heirs at law. While that case was decided in 1836, two years after tbe Act of Feb. 24, 1834, P. L. 70, became a law, tbe effect of that act was not considered because tbe judgment bad been irregularly revived ten or twelve years before tbe act went into effect. It does show, however, bow this court regarded irregular revivals of judgments under tbe early practice, even after tbe Act of 1834 was passed. Tbe authority of that case bas been frequently cited with approval in later cases: Overton v. Tozer, 7 Watts 331; Duff v. Wynkoop, 74 Pa. 300.

Then, again, in passing upon tbe merits of tbe present controversy, tbe Act of 1705,1 Sm. Laws 57, must not be overlooked. This act provides, in substance, that if tbe sheriff sell lands under an execution upon a judgment irregularly obtained, and which may be subsequently reversed for errors, sucb lands shall not be restored to tbe person against whom tbe judgment may have been wrongfully entered, but restitution only shall be made of tbe price for which sucb lands were sold. This is a wholesome statute, intended to quiet titles, and bas always been favored by our courts, both before and after tbe passage of tbe Act of 1834: Warder v. Tainter, 4 Watts 270; Feger v. Kroh, 6 Watts 294; Mellon v. Guthrie, 51 Pa. 116; Duff v. Wynkoop, supra; Shannon v. Newton, 132 Pa. 375; Lengert v. Chaninel, 208 Pa. 229. Our cases conclusively show that the Act of 1705 has been broadly and liberally construed in order to prevent the disturbance of titles because of errors and irregularities in entering judgments and making sales by sheriffs upon executions. The case at bar comes clearly within the spirit and purpose of this act.

It is also objected that the land was improperly sold on a writ of fieri facias because there was no waiver of inquisition. This objection ignores the facts which appear of record. The execution docket of Greene county shows that inquisition was waived. The warrant of attorney upon which the original judgment was entered in Allegheny county contains an express waiver of inquisition, and the exemplification transmitted to Greene county also contains a similar waiver. The sheriff’s deed contains a recital that the land was seized and sold by virtue of a writ of fieri facias upon which inquisition was waived. In view of these facts it cannot be said that the land was sold upon a process in which inquisition was not waived. But at most this is only an irregularity which under the authority of our cases must be objected to within a reasonable time, and it has been frequently held that such reasonable time is before the confirmation of the sale and the acknowledgment of the deed: Spragg v. Shriver, 25 Pa. 282; McLaughlin v. McLaughlin, 85 Pa. 317; Clough v. Welsh, 229 Pa. 386.

All of the other matters complained of on this appeal are irregularities, or errors, not subject to collateral attack in an action of ejectment.

Assignments of error overruled and -judgment affirmed.


author: Mr. Justice Beown,

text:
    Black Street.

      Road law — Ordinance — Repeal of ordinance — Opening street.

    1. An ordinance of a city of tbe second class repealing an ordinance authorizing tbe opening of á street, is not invalid because it was passed both by tbe common and select council on tbe same day, if it appears that it was introduced on a prior day and signed by the mayor on a subsequent day. Tbe repealing ordinance does not violate in these respects either tbe Act of May 23, 1874, P. L. 230, or tbe Act of March 7, 1901, P. L. 20.
    2. Such an ordinance is not invalid because it was not signed by the presidents of tbe two branches of council, and by tbe clerk of tbe common council under the special acts relating to tbe city of Pittsburgh of April 6, 1867, P. L. 846 and April 1, 1868, P. L. 565, inasmuch as tbe Act of March 7, 1901, P. L. 20, relating to tbe government of cities of the second class, repealed tbe special acts. If an engrossed copy of the ordinance was certified by the clerk of tbe select council and transmitted to tbe mayor, everything was done that was necessary.
    3. An ordinance repealing an ordinance authorizing tbe opening of a street is not a proceeding to vacate the street.
    4. A city will not be presumed to have entered upon and opened a merely located street, because in tbe improvement, grading, curbing and paving of streets which crossed tbe line of tbe located street turnouts were made, if it appears that none of such turnouts went beyond tbe line of tbe cross street which was being improved.
    Argued Oct. 17, 1911.
    Appeal No. 56, Oct. T., 1911, by Henry H. Negley and Robert B. Petty, executors of the last will of Catherine R. Negley, from order of C. P. No. 3, Allegheny Co., Feb. T., 1909, No. 637, dismissing petition to set aside order quashing proceedings before Road Viewers in re Black street in the city of Pittsburgh.
    Before Fell, C. J., Brown, Mestrezat, Potter, Stewart and Moschzisker, JJ.
    Affirmed.
    Petition to vacate order quashing proceedings before a jury of view.

      The court filed the following opinion:
    The city of Pittsburgh, by ordinance approved July 13th, 1908, authorized and directed the opening of Black street. Viewers were appointed at the above number and term to ascertain the damages and assess benefits by reason of said opening. The viewers’ report was filed April 1,1910, and confirmed nisi.
    An ordinance to repeal the ordinance opening Black street was introduced in common council February 14, 1910, and was referred to the public works committee, which committee was a joint committee of common and select council; and the ordinance was considered by the said committee on April 8, 1910, and ordered returned to council with an affirmative recommendation. The ordinance was reported to common council on April 11, 1910, and was passed finally by said council on same day. On the same day it was transmitted to select council and passed finally by select council the same day, a majority of all the members of each branch of councils voting in favor of the ordinance. A copy of the ordinance was transmitted to the mayor and, on April 15,1910, he approved the same.
    On April 28, 1910, the petition of the city of Pittsburgh, by Joseph G. Armstrong, director of the department of public works, was presented to this court, setting forth the fact of the passage of the ordinance repealing the ordinance for the opening of Black street, and praying that the viewers’ report and the proceedings at the above number and term, be and the same are hereby quashed, and that the costs of this proceeding be paid by the city of Pittsburgh.
    On July 20, 1910, Henry H. Negley and Robert B. Petty, executors of the last will of Catherine R. Negley, presented their petition to court, praying that the court set aside the order of April 28, 1910, quashing the proceedings before the board of viewers, and reinstate said report, that the same may be proceeded in according to law. A rule was granted on the city of Pittsburgh to show cause why the prayer of the petition should not be granted; and the cause comes before the court on the return of that rule.
    In support of that rule, the petitioners allege that the ordinance purporting to repeal the ordinance opening Black street was void for the following reasons:
    That the ordinance was passed in select council on the same day it was introduced.
    That the ordinance was not signed by the presidents of councils or the clerk of common council.
    That the ordinance was not properly certified or signed by the mayor.
    That the ordinance was not passed on petition of property owners, or by the three-fourths vote of councils, and was not advertised as required by the Act of May 22, 1895, P. L. 106, amended by the Act of March 19, 1903, P. L. 35.
    And, that the ordinance is not effective because the property of the estate of Catherine E. Negley has been entered upon by the city and Black street has been treated as a public highway by the city.
    The acts of assembly governing the passage of ordinances by council are, the general Act of May 23, 1874, P. L. 230, which provides, in Section 4: “Every bill shall be read at length in each branch; no bill shall become a law upon the same day on which it was introduced or reported”; and the Act of March 7, 1901, P. L. 20, for the government of second class cities, Section 4, “No ordinance or resolution shall be passed finally on the day of its introduction, except in case of public emergency, and then only when requested by the city recorder and approved by the affirmative votes of all the members of councils.”
    As to the provisions of the Act of 1874, this bill did not become a law on the day it was introduced or reported. It did not become a law until signed by the mayor which was two months after it was introduced in council, and four days after it was reported out of committee. The provision of the Act of 1901 does not affect this ordinance, because it was not passed finally on the day of its introduction. It was introduced into councils, February 14, and was not passed finally until April 11th. It is true, it was passed finally the day it was transmitted from common to select council; but the act of assembly only prohibits the passage of the ordinance finally on the day of its introduction. The difference between the Act of 1901, governing second class cities, and the act governing third class cities, is significant. The latter act provides “no bill shall be passed finally in either branch upon the same day upon which it was introduced or reported.” The legislature provided a difference, and a very significant difference, in the acts governing the two different classes of cities.
    It appears that, after the final passage of this ordinance by select council, a copy of the ordinance was made, which was signed by the clerk of select council and transmitted to the mayor for his approval. It is objected by the counsel for petitioners, that the ordinance is void, because it is not signed by the presidents of council, nor by the clerk of. common council; and the Act of April 6, 1867, P. L. 846, and the Act of April 1, 1868, P. L. 565, are cited in support of this contention.
    These last two acts are special acts, relating to the city of Pittsburgh. The Act of March 7, 1901, P. L. 20, is an act for the government of second class cities, and provides a complete system of government for those cities; and, in our opinion, repeals the special acts for the city of Pittsburgh which are inconsistent with it. But, even if the acts of 1867 and 1868 are in force, the acts of the presiding officers are purely ministerial. The requirement that they shall sign the ordinances was not essential to the validity of the ordinance. The Act of June 20,1901, P. L. 586, relating to cities of the second class, provides: “Every ordinance or resolution shall, before it takes effect, be presented, duly engrossed, and certified, to the city recorder, for Ms approval. The city recorder shall sign if he approves.” The city recorder is now the mayor of the city of Pittsburgh. This was done in this case. To engross an ordinance means to make a copy of it. A copy of this ordinance was made and certified by the clerk of select council and transmitted to the mayor. It is not intended that the original paper which was introduced, with all its amendments and interlineations, should be sent in that condition to the mayor for his approval; but'that the ordinance, as finally passed, should be engrossed and sent to the mayor. That was done in this case, and the mayor approved it. There is no requirement in the Act of 1901, or in the Act of January 7,1874, P. L. 477, that the clerks of both branches shall sign the ordinance; but that the ordinance shall be properly certified. And the one to certify that ordinance is the clerk of that branch which passed the ordinance finally.
    It is further contended by counsel for the petitioners that this is, in effect, a vacation ordinance, and that councils had no jurisdiction to pass this vacation ordinance, except on the petition of property owners, or by three-fourths vote of councils after advertisement as required by the Act of 1895, amended by the Act of March 19, 1903, P. L. 35.
    The ordinance purporting to repeal the ordinance opening Black street was passed by virtue of Section 7 of the Act of May 16, 1891, P. L. 75. That section provides as follows:
    “In case any such municipal corporation shall repeal any ordinance passed, or discontinue any proceeding taken, providing for any of the improvements mentioned in the preceding sections prior to the entry upon, taking, appropriation or injury to any property or materials, and within thirty days after the filing of the report of viewers assessing damages and benefits, the said municipality shall not thereafter be liable to pay any damages which have been, or might have been, assessed, but all costs upon any proceedings had thereon shall be paid by said municipal corporation, together with any actual damage, loss or injury sustained by reason of such proceedings.”
    It seems to us that the contention that the repeal of the ordinance opening Black street was a proceeding to vacate Black street cannot be sustained. The repeal of the ordinance opening Black street is to annul all proceedings had by virtue of that ordinance. It restores the parties to the same position which they occupied before the ordinance for the opening of Black street was passed. It is an annulment of the proceedings to open Black street. The vacation of a street affirms all the proceedings for the establishment of that street. It accepts the street as a public highway, and begins proceedings to vacate.
    The legislature bas provided a system for the vacation of streets. If it had intended that this proceeding should be a vacation, it would have called it a vacation, and provided for the proceedings, as in case of other vacations; It is evidently intended that, if the city discovers that it is not good policy to proceed with the improvements undertaken, before the final confirmation of the viewers’ report, it may repeal the ordinance or discontinue the proceedings taken, without liability to pay any damages which have been assessed. It will be observed that the ordinance must be repealed, or the proceedings discontinued, within thirty days after the filing of the report of the viewers. That means, before final confirmation of the viewers’ report. There is no restriction on the jurisdiction of council to take these proceedings only on the petition of abutting property owners. At the time of the passage of this act, the act empowering councils to pass ordinances for improvements and for vacation of streets by a three-fourths vote, was not the law.
    The last contention of petitioners is a question of fact.

      Error assigned was order dismissing the petition.

      George B. Gordon, with him R. B. Petty & Sons, for appellants.
    The city has taken appellants’ property as effectually as though Black street was fully paved and to deny appellants’ right to damages is to nullify the constitutional provision that private property shall not be taken, injured or destroyed without compensation: District of Pittsburgh, 2 W. & S. 320; Bush v. McKeesport, 166 Pa. 57; Wood v. State Hospital, 164 Pa. 159; Franklin street, 14 Pa. Superior Ct. 403; Hammett v. Phila., 65 Pa. 153.
    The so-called repealing ordinance was passed by select council the same day it was introduced therein and is therefore contrary to law and void, and was passed by both branches of council on the same day it was reported from committee and is therefore contrary to law and void: Altoona v. Bowman, 171 Pa. 307; Penna. R. R. Co. v. Pittsburgh, 221 Pa. 90.
    The said repealing ordinance was not passed on petition of property owners nor by a three-fourths vote of councils and was not advertised as required by the act of 1895, amended by the Act of March 19,1903, P. L. 35, and is therefore void: Focht v. Lebanon, 4 Dauphin County 12; Stockdale v. School Dist., 47 Mich. 226 (10 N. W. Repr. 349); Whitney v. Hudson Village, 69 Mich. 189 (37 N. W. Repr. 184).

      Lee G. Beatty, with him G. A. O’Brien, for appellee.
    The ordinance repealing the ordinance opening Black street was a valid exercise of the powers conferred upon the city of Pittsburgh: Franklin street, 14 Pa. Superior Ct. 403; Moravian Seminary v. Bethlehem Borough, 153 Pa. 583; Myers v. South Bethlehem Boro., 149 Pa. 85; Sensening v. Lancaster County, 30 Pa. Superior Ct., 224.
    The city made no entry upon the property such as precludes it from withdrawing from the opening proceeding: Uhler v. Cowen, 199 Pa. 316; Franklin Street, 14 Pa. Superior Ct. 403.
    May 13, 1912:
    Councils violated no statutory provisions in the passage of the repealing ordinance: Harrisburg v. Gas Company, 219 Pa. 76; Pennsylvania R. R. Co. v. Pittsburgh, 221 Pa. 90.
   Opinion by

Mr. Justice Beown,

The ordinance assailed by the appellants is not for the vacation of Black street. It merely repeals the ordinance of July 13, 1908, directing the opening of that street, which for many years had been a located, but unopened, highway of the city of Pittsburgh on what was known as the “East Liberty Plan.” The ordinance of April 15, 1910, repealing the opening ordinance, was passed in pursuance of the provisions of the Act of May 16, 1891, P. L. 75, and all of the objections to the validity of its passage are clearly and correctly answered in the opinion of the learned judge of the court below refusing to vacate the order quashing the proceedings before the board of viewers.

The contention that the repealing ordinance is not effective as to the property belonging to the estate of Catherine R. Negley, deceased, because, at the time it was passed, the city had entered upon that property and treated Black street as one of its highways, involves a question of fact which the court below found adversely to the appellants. The finding is as follows: “In the improvement, the grading and curbing and paving of streets, which cross the line of the located Black street, turnouts were made in the paved streets at places where they crossed the located Black street. But on none of these streets did the city go beyond the line of the cross street which it was improving. It could not be said to have entered upon Black street, because, although there is a turnout which indicated that there was or was to be a street at each of these places yet the entire improvement at this place was within the line of the several cross streets which it was improving at the time. It would be an undue stretching of the situation to say that this was an entry upon Black street and treating that as a public highway by the city.” This finding has not been assigned as error, and we cannot, therefore, disturb it; but, even if it had been so assigned, we could not overrule it, for the testimony of J. S. Fullerton, called as a witness by the appellants, was sufficient to sustain it. On cross-examination, he testified as follows: “Q. Outside of Boreland street, which is shown on this plan, none of the curbs extend into the part covered by Black street? A. They extend to the property line, yes sir. Q. They don’t extend beyond the line of the cross streets which are shown upon the plan? A. No, sir; the location is within a tenth or so. Q. At the end of Boreland street you say the curb is extended into Black street? A. Yes, sir. Q. And that is the only one of these streets where the street improvements extend to any extent whatsoever upon the property covered by what is known as Black street? A. Yes, sir.”

Both assignments of error are dismissed and the order of the court below is affirmed, at appellants’ costs.