author: Beaver, J.,

text:
    Lamon v. Rodgers, Appellant.

      Partition — Failure to defend — Estoppel—Tenants in common.

    1. Where a court has jurisdiction of the subject matter and parties in a suit in partition, and some of the defendants pay no attention to a service upon them, and do not appear or answer, they are bound by the decree in partition and sale thereunder, and such defendants cannot in a subsequent action of ejectment allege that at the time of the partition they had a good and valid title by adverse possession for the statutory period.
    2. The possession of one tenant in common is prima facie the possession of his cotenant also, and the mere reception of profits, payment of taxes, and making repairs without more will not sustain a claim of ouster or adverse possession.
    Argued Dec. 15, 1909.
    Appeal, No. 229, Oct. T., 1909, by defendants, from judgment of C. P. No. 3, Phila. Co., Sept. T., 1904, No. 823, for plaintiff on case tried by the court without a jury in suit of Heber M. Lamon v. Annie Rodgers, Francis Rodgers, Joseph Rodgers, Margaret Rodgers, Joseph McKee and Annie, his wife.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Ejectment for land 224 West Thompson street, Philadelphia.
    The case was tried by Ferguson, J., without a jury under the Act of April 22, 1874, P. L. 109.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was in entering judgment for plaintiff on case tried by the court without a jury.

      John H. Fow, for appellant.
    — The court committed an error in allowing the proceedings in partition to be admitted in evidence, notwithstanding the objections of defendants, as they were not bound by the partition proceedings, as they were not valid or binding, as to them, as they had completely ignored them; as the record in partition shows. That at that time they were and had been for over twenty-one years in open, notorious and adverse possession of said premises from which it is a presumption of both fact and law; that they had actually ousted their cotenants, their claim was different both in nature and character from that of the parties in partition; and therefore they were not bound by the partition proceedings) Slayman v. Clark, 15 Pa. Superior Ct. 591; Goundie v. Water Co., 7 Pa. 233; McClure v. McClure, 14 Pa. 134; Perrine v. Kohr, 205 Pa. 602; Cook v. Brown, 34 N. H. 460.

      V. Gilpin Robinson, with him John Creth Marsh, for appellee.
    — The defendants having had notice of the partition proceedings, and having failed to set up their adverse claim at that time, are estopped from now setting up an adverse title as against the title of the purchaser from the master in partition: Weaver v. Lutz, 103 Pa. 593; Gallatzin B. & L. Assn. v. Steigers, 28 Pa. Superior Ct. 336; Cummisky v. Cummisky, 109 Pa. 1; Stewart v. Madden, 153 Pa. 445.
    March 3, 1910:
   Opinion by

Beaver, J.,

This is an action of ejectment for a lot in the city of Philadelphia, with a dwelling house thereon erected. It was tried by one of the judges of court of common pleas No. 3 without a jury. It was originally brought against Annie Rodgers, but by a subsequent agreement between the attorneys for the plaintiff and the defendants the suit was amended and an alias writ issued, so as to include all of the present defendants, who are the widow and children of one John J. Rodgers, who was the youngest son of Francis Rodgers, the latter being the brother of Bernard Rodgers, deceased, who died in 1852 intestate, unmarried and without issue, leaving to survive him a mother, brothers and sisters and nephews and nieces.

The court below found in its sixth finding of fact that, “ On January 29, 1896, Stephen J. Rodgers, a brother of John J. Rodgers, filed a bill in equity for partition of the premises in question. This bill was filed in this court as of December Term, 1895, No. 1030. It recited the conveyance from Arthur Rodgers to Bernard Rodgers, and the vesting of the premises at the death of the latter in his brothers and sisters and nieces and nephews.

“It also recited the death of Francis Rodgers and the vesting of his interest in his widow and children. All of the defendants in the present action, being the widow of John J. Rodgers and his children, were parties defendant and were served with the bill and notice of all subsequent proceedings; some of the children being alleged to be under age and represented by their guardian, John H. Fow, who was also served ”

Under the subsequent findings of fact by the judge who tried the case, it appears that the proceedings in partition were conducted to adjudication, decree and sale, the sale being made to one Haley, through whom and subsequent grantees the present plaintiff claims.

-The conclusions of law reached by the trial judge were:

“1. The defendants, being cotenants of the other heirs of' Bernard Rodgers and proving no ouster of the other tenants, have failed to establish a title by possession as against them.
“2. The proceedings in partition being by a court having jurisdiction of the subject-matter and of the parties, are conclusive and defendants cannot impeach their validity.
“3. Judgment should be entered for the plaintiff for possession of the premises.
“4. Damages should be entered for the plaintiff for mesne profits from January, 1904, at $12 per month, $576, less taxes for the years 1904, 1905 and 1906, $66.60, and repairs, $11.20, making $77.80, or a net amount of $498.20.”

Defendants admitting that they were served with process in due form in the proceedings in partition, seek to avoid the effect thereof upon them by alleging that they paid no attention to the service, entered no appearance and made no answer thereto. This does not seem to us to be in any sense a sufficient answer to the finding of fact of the court below that the court in which the proceedings in equity for partition were held had jurisdiction of the subject-matter and of the parties. If this be a fact, — and it does not seem to be denied, and we cannot see how it can be effectively denied,— why are the defendants not bound by the decree in partition and the sale had thereunder by which the plaintiff obtained title? The bill praying for partition was filed by a brother of the deceased, John J. Rodgers, under whom the defendants claim.

The first assignment of error relates to the first conclusion of law, that “the defendants, being cotenants of the other heirs of Bernard Rodgers and proving no ouster of the other tenants, have failed to establish a title by possession as against them.” This conclusion must rest finally upon the questions of fact, as found by the court, hereinbefore referred to. The appellants cite, as authority for their position, Rohrbach v. Sanders, 212 Pa. 636, in which, at p. 641, Mr. Justice Fell says: “The possession of one tenant in common is prima facie the possession of his cotenant also, and the mere reception of profits, payment of taxes, and making repairs without more will not sustain a claim of ouster or adverse possession: Bolton v. Hamilton, 2 W. & S. 294. The claim of exclusive right may be established by proof that one tenant in common has entered on the whole land and taken possession and occupied the whole, claiming the profits as his own for twenty-one years, without acknowledging the claim of his cotenant: Law v. Patterson, 1 W. & S. 184. It was said in Frederick v. Gray, 10 S. & R. 182, that where one tenant in common enters on, and takes the profits of the whole under an exclusive claim for twenty-one years the jury ought to presume an actual ouster though none be proved. The rule is thus stated in the opinion in Susquehanna, etc., R. R. & Coal Co. v. Quick, 61 Pa. 328: It is, therefore, certainly the law that open, notorious and uninterrupted possession of the whole by a tenant in common for more than twenty-one years, claiming the whole land as his own, and taking the whole profits exclusively to himself, is evidence from which a jury may draw the conclusion of an ouster and adverse possession. The distinction is that it does not afford a legal presumption, which would entitle the court to withdraw the question from the jury, and instruct them that they must infer an ouster and adverse possession, if not successfully rebutted.’”

It was, therefore, the province of the court here to find whether or not there had been an ouster by Francis Rodgers of his tenants in common after the death of his brother Bernard. Having failed to find that as a fact, which under what follows could hardly have been found legitimately, we fail to see wherein the conclusion of law is improper.

The second assignment of error relates to the second conclusion of law, which is: “2. The proceedings in partition, being by a court having jurisdiction of the subject-matter and of the parties, are conclusive, and defendants cannot impeach their validity.” Without in any way denying the facts clearly found by the court below, upon which this conclusion of law rests, the appellants seek to avoid its bearing and significance by the assertion that the defendants “were not bound by the partition proceedings, as they were not valid or binding as to them, as they had completely ignored them; as the record in partition shows. That at that time they were, and had been for over twenty-one years, in open, notorious and adverse possession of said premises, from which it is a presumption of both fact and law that they had actually ousted their cotenants; their claim was different, both in nature and character, from that of the parties in partition; and, therefore, they were not bound by the partition proceedings,” citing Slayman v. Clark, 15 Pa. Superior Ct. 591, as authority.

It must be borne in mind that the defendants here were not only subject to the jurisdiction of the court, in which the proceedings in partition were had, but that the property concerning which the proceedings in partition were had was also subject to the jurisdiction of the court. When, therefore, the bill alleged that the defendants were cotenants with the parties asking for partition and others, it was their duty to respond to the notice of partition and to make answer to the bill. This they failed to do, a decree in partition being had as against them, pro confesso, in the absence of an appearance and answer.

The appellants misapply the principle of Slayman v. Clark, 15 Pa. Superior Ct. 591. That was an action in partition in the orphans’ court. There was included in it a piece of real estate which did not belong to the decedent, and there was no allegation in the petition for the proceedings in partition that the de-. fendant was a tenant in common with others in the title thereto. It was expressly Said in that case: “Did the defendant by her silence admit the jurisdiction of the court? We think not. If the proceedings had been such as to require her to appear and plead or to take any definite action in regard to the matter, it might have been different. She simply ignored them, did not submit her claim to adjudication in any way, was not heard in regard to it and cannot be regarded as having waived any of her rights. The plaintiff was in no way misled by defendant’s silence. He not only had knowledge of her possession, but made several ineffectual attempts to purchase the property in which she resided, which in part covered the strip included in the partition proceedings before they were commenced.”

Here, however, the case was entirely different. This was a proceeding in equity in which the defendants were named as tenants in common with others. Their estate was defined. It was, therefore, their duty, when service was had upon them, to submit the question of their interest in the property to the court having jurisdiction of both the subject-matter and their persons. Having failed to do this, we cannot see how the decree of the court, regularly had as to the question of the title, can be ignored by them and now attacked collaterally in this proceeding. This being so, the third assignment of error must fall, which is “3rd. The court below erred in entering judgment for the plaintiff for possession of the premises.”

The plaintiff, in his statement of claim, declared for mesne profits. These were found by the court, and judgment for the net amount entered in favor of the plaintiff. In this there was no error.

The conclusions of law are all based upon and drawn from the facts which are specifically found by the court, and these are all fairly deducible from the evidence.

Judgment affirmed.


source: Caselaw Access Project

author: Morrison, J., Rice, P. J.,

license: Public Domain

text:
    Wise v. Martin, Appellant.

      Decedent’s estates — Claim for services — Nursing—Evidence—Contract.

    In an action against a decedent’s estate to recover $25.00 per week for nursing decedent during the last months of his life, where it appears that the plaintiff was employed during the same period as a domestic with wages at $2.00 per week, she cannot recover unless she shows that she had an express contract with the decedent to pay her for the nursing, and the question as to whether such a contract was made cannot be submitted to the jury where there is no evidence except loose declarations made by the decedent to outside parties, indefinite understandings, suggested gratuities, anticipated benefactions and testamentary intentions not carried out.
    Argued Oct. 28, 1909.
    Appeal, No. 52, Oct. T., 1909, by defendants, from judgment of C. P. Clearfield Co., May T., 1908, No. 180, on verdict for plaintiff in case of Jennie Wise v. A. F. Martin, administrator.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Reversed.
    Assumpsit to recover compensation for nursing decedent. Before Ormerod, P. J., specially presiding.
    The facts are stated in the opinion of the Superior Court.
    The court charged in part as follows:
    If the jury from this evidence, the declarations made by Mr. McCloskey in the presence and not in the presence of the plaintiff in this case, should find that there was an agreement between them whereby she was to receive compensation for her services as a nurse, they may find a verdict in her favor for the amount which they believe she would be entitled to receive for such services. [3]
    Verdict and judgment for plaintiff for $900. Defendant appealed.

      Errors assigned were (I) refusal of binding instructions for defendant; (2) refusal of motion for judgment non obstante veredicto; (3) portions of charge as above, quoting them.

      Roland D. Swoope, for appellant.
    — A disappointed claim for .a legacy cannot be compensated by setting up an unpaid claim for services without lawful evidence to support it: Miller’s Est., 136 Pa. 239; Graham v. Graham, 34 Pa. 475; Weaver’s Est., 182 Pa. 349; Miller’s Est., 222 Pa. 334; Rosencrance v. Johnson, 191 Pa 520; Moore’s Est., 12 Pa. Superior Ct. 599; Grossman v. Thunder, 212 Pa. 274.
    The court below erred in admitting evidence of the declarations of the decedent made to outside parties not shown to have been made in the presence of the plaintiff, or communicated to her: Ulrich v. Arnold, 120 Pa. 170; Pollock v. Ray, 85 Pa. 428; Wall’s App., 111 Pa. 460; Graham v. Graham, 34 Pa. 475; Atkinson’s Est., 9 Pa. Dist. Rep. 404; Harrar v. Edwards, 17 Lanc. L. R. 223; Carpenter v. Hays, 153 Pa. 432.

      A. M. Liveright, with him David Krebs, for appellee.
    — The case was for the jury: Harrington v. Hickman, 148 Pa. 401; Ranninger’s App., 118 Pa. 20.
    There can be no implication of law or presumption arise against plaintiff’s right to compensation as a nurse because she also performed the duties of a hired domestic: Eichelberger’s Est., 170 Pa. 242.
    It is not necessary to point out that the court committed no error in admitting the declarations of Mr. McCloskey, expressing again and again, both in the presence of the plaintiff as well as in her absence, of his desire that she should be compensated for the services which she rendered him in his helpless condition, when no one else, not even his own child, would wait upon, or even come to see him: Hunt’s App., 100 Pa. 590; Miller’s App., 100 Pa. 568; Perkins v. Hasbrouck, 155 Pa. 494.
    April 18, 1910:
   Opinion by

Morrison, J.,

The plaintiff brought this action to recover the value of her services nursing Samuel McCloskey, deceased, as she alleged, for about one and one-half years of the latter part of his lifetime and until twelve days before his death. She recovered a verdict and judgment thereon for 1900. During all of the time she did the alleged nursing she was in the employ of the decedent as a domestic in consideration of $2.00 per week or $10.00 per month,- and she was paid for her work as a domestic in full. At the trial, the defendant’s counsel presented a written point asking for a binding instruction in favor of the defendant. This was refused, and an exception noted for defendant. After verdict, the same counsel moved the court for judgment non obstante veredicto upon the whole record, and this was refused and an exception noted for defendant and judgment entered on the verdict. Therefore, the question of the sufficiency of the evidence to sustain the verdict is squarely raised by the first and second assignments of error and also by the third.

The declaration sets up a right to recover upon a quantum meruit, and an express contract is not averred. This, under the decisions, perhaps does not necessarily prevent a recovery, provided the evidence clearly raises an implied contract by showing that the plaintiff and McCloskey both understood that the nursing was not embraced in the contract for domestic service, but that it was to be paid for on the basis of its value.

It will be noted in the present case that the plaintiff and McCloskey were not related either by consanguinity or affinity: Smith v. Milligan, 43 Pa. 107; Weaver’s Est., Paul’s App., 182 Pa. 349; Harrington v. Hickman, 148 Pa. 401. But in the latter case it was only held that the services rendered by the plaintiff could, in the absence of any agreement fixing a price upon them, have been recovered for upon a quantum meruit. There was positive testimony of a declaration of the decedent that the plaintiff was to be paid for her services as nurse. The ruling there is that a recovery might be had upon a contract and that the amount thereof could be fixed as the value of the services.

In Pollock v. Ray, 85 Pa. 428, Mr. Justice Si-iarswood said: “Claims of this character against the estates of decedents, resting on mere oral testimony of declarations or admissions, are very dangerous, and ought certainly not to be favored by the courts.” In Wall’s App., 111 Pa. 460, Mr. Justice Green, in closing his opinion for the court, on p. 471, said: “Claims of this nature against dead men’s estates, resting entirely in parol, based largely upon loose declarations, presented generally years after the services in question were rendered, and when the lips of the party principally interested are closed in death, require the closest and most careful scrutiny to prevent injustice being done. We cannot too often repeat the cautions we have so frequently uttered upon this subject, and we feel that the present occasion is one which demands both their repetition and their application.”

It may be conceded that under the evidence in the present case the jury could find that $10.00 per month was inadequate compensation for the labor which the evidence tends to show was performed by the plaintiff. But in view of the character of the plaintiff’s claim, and the fact that she was steadily under the employment of the decedent, for a long period of time, at $2.00 per week, and received her pay in full, and that she also received more than $100 from the Odd Fellows for her special care of McCloskey, and the further fact that her claim was not presented until after the lips of Samuel McCloskey and his wife were closed in death, we are not at liberty to permit our sympathies to obscure the legal principles established for the disposition of such cases, by a long line of decisions of the Supreme Court, as well as by numerous decisions of this court.

The present case bears the earmarks of one of those dangerous cases so often commented upon by the Supreme Court. This plaintiff had been in the employ of the deceased for a long time without any bargain for more then $2.00 per week, and we cannot find in the testimony any sufficient evidence to warrant a jury in finding that there was even an implied contract to pay her more than the stipulated sum. It is true that there was considerable loose talk by McCloskey to other persons about her services and that they never could pay her for the same, and again, that she would have to be paid at- some indefinite time in the future. But there is also evidence, on the part of the plaintiff, that she was told that they were not able to pay her more than the $2.00 per week, or at the most $10.00 per month. There is considerable evidence that she was expecting to- be rewarded by a legacy from Mrs. McCloskey and after the death of the latter, and after it was found that the plaintiff was not remembered in her will, the plaintiff quit taking care of McCloskey and left him about twelve days before his death. There is no evidence of any agreement with the plaintiff that .she was to have a legacy. Nor is there any satisfactory evidence that the plaintiff ever agreed with McCloskey that she would nurse and care for him and receive her compensation therefor in the future.

It is to be noticed that this plaintiff seems only to have been accustomed to receive $2.00 per week for her services; she not being a trained nurse, was willing soon after the death of Mr. McCloskey and his wife to fix up and present to the administrator a claim of $25.00 per week, as a nurse, amounting to $1,950, upon which she admitted a credit of $10.00 from some source and a credit of $105.74 from the Odd Fellows, and she actually attempted to collect the balance and succeeded in recovering a verdict and judgment for $900. In our opinion, this case, as it appears from the evidence in the record, ought not to have been submitted to the jury.

Counsel for the plaintiff appear to rely especially on Harrington v. Hickman, 148 Pa. 401, but that case reversed the court below for refusing to submit to the jury the positive evidence of a witness that the decedent said to. him: “I have promised her that she shall be paid by my executors when I am gone for waiting on me.” If a jury believed this evidence, it established an express contract.

In Ranniger’s App., 118 Pa. 20, cited by plaintiff’s counsel, the Supreme Court expressed some doubt on the plaintiff’s right to recover, but affirmed the decree because the “auditor upon an examination of the whole case has found the facts essential to her recovery, and these findings have been approved by the court. The findings of an auditor when so approved will not be set aside except for flagrant error.”

In Eichelberger’s Est., 170 Pa. 242, cited by plaintiff’s counsel, there was proof of an express contract for the payment of the plaintiff for extra services rendered.

In Ranck v. Albright, 36 Pa. 367, the plaintiff was employed at a fixed compensation as housekeeper and domestic servant, but it appears that she was required to perform much more work than was anticipated at the time she was hired. In reversing the judgment of the court below the Supreme Court said: “In the absence of any proof of a new contract, the law presumes that the plaintiff continued at service until she left, at the same wages at which she commenced. And this presumption is not destroyed by the fact, that she was required to do more work than she at first anticipated, in consequence of the defendant’s resumption of the active labors of farming. If she was dissatisfied with the original arrangement, she should have demanded additional compensation.”

In the late case of Grossman v. Thunder, 212 Pa. 274, the Supreme Court in an opinion by Mr. Justice Elkin appears to have settled the question that, “A domestic and a nurse in the home of the testatrix, having received fixed wages for her services as such, cannot recover in this action for alleged extra services in the absence of an express contract to that effect or an agreement to provide for such compensation by a legacy. The evidence is not sufficient to support either contention. Loose declarations made to outside parties, indefinite understandings, suggested gratuities, anticipated benefactions and testamentary intentions not carried out, about which there is some vague and unconvincing testimony, are not sufficient to establish an express contract, either to pay for the extra services at the death of the testatrix or to provide for such compensation by a legacy.” That case is substantially the same as the case in hand. In each the plaintiff was paid in full as per contract. The plaintiff here certainly did not agree to remain and nurse McCloskey on the footing of a legacy, although it is quite clear that shq anticipated the legacy, nor can we find from the evidence that she agreed to remain and nurse McCloskey on a contract for compensation in addition to the $10.00 per month, which she received.

Our own case of Moore’s Est., McClure’s App., 12 Pa. Superior Ct. 599, is in harmony with Grossman v. Thunder, 212 Pa. 274. In that case we said, by Beaver, J.: “The question recognized on all hands as being the important one is, Was there a distinct contract for the payment of increased compensation different from that originally entered into between the parties? We cannot find anywhere in the case the clear and explicit evidence upon which such a contract should rest.” To the same effect is Howard v. Drexler, 14 Pa. Superior Ct. 59, and these cases are followed by Piersol's Est., 27 Pa. Superior Ct. 204, where the same doctrine is reaffirmed.

We sustain the first, second and third assignments of error and the judgment is reversed.

Rice, P. J.,

dissenting:

It.seems to me that the reasoning of the opinion of the learned trial judge, overruling the motion for judgment non obstante veredicto, and the recital of evidence contained therein, vindicate his conclusion that there was sufficient evidence to warrant submission to the jury of the question, whether there was a contract whereby the plaintiff was to receive payment for her services as nurse as distinguished from her services as a domestic. It is not a case where the plaintiff's demand rests only on the fact that she rendered valuable services and a bare inference therefrom that it was not intended to be gratuitous. Nor does her demand, if the evidence be believed, rest only on the declarations of the decedent in her absence, but has the support also of declarations made in her presence, which she might fairly and justly interpret as expressing his intention that she should be compensated. The evidence of declarations made to others, even if not sufficient standing alone, to justify a finding that there was a contract, was competent, Harrington v. Hickman, 148 Pa. 401, and taken in connection with the evidence as to what was said in her presence and all the circumstances, was sufficient to carry the question to the jury. I am constrained, therefore, to dissent from the judgment about to be entered.

Judge Henderson and Judge Head authorize me to say that they join in this dissent.


author: Morrison, J.,

text:
    Stouffer v. Jackson, Appellant.

      Statute of frauds — Promise to pay the debt of another — Evidence.
    1. An oral promise made by the owner of a building under construction to a material man to pay for material furnished in case the contractor made default in such payment, is void under the statute of frauds.
    2. The evidence to prove a promise by one person to pay the debt of another as a new and original undertaking, and not a contract of suretyship, must be clear, precise and indubitable.
    3. An owner of a building under construction cannot be held liable to a material man for material furnished where the evidence shows that the p'arties only contemplated that the owner would endeavor to pay the material man out of such sums of money as he might owe the contractor in case the latter completed the building in accordance with the contract.
    Argued Oct. 28, 1909.
    Appeal, No. 101, Oct. T., 1909, by defendant, from judgment of C. P. Huntingdon Co., May T., 1908, No. 14, on verdict for plaintiff in case of Adam Stouffer v. Theodore Jackson.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Reversed.
    Appeal from judgment of justice of the peace. Before Woods, P. J.
    The facts are stated in the opinion of the Superior Court.
    Defendant presented the following points:
    1. The testimony of plaintiff discloses the fact that the contract upon which the lumber was delivered, involved in this action, was made between himself and one I. M. Norris and not between himself and the defendant, and that at a time subsequent to the making of the contract the defendant made a verbal promise to him either to see that he was paid or to pay the bill, and there being no instrument in writing or memorandum charging the defendant under this contract, he is relieved by the statute of frauds and perjuries; and your verdict should be for defendant. Answer: Refused. [1]
    2. The evidence on the part of the plaintiff does not disclose any contract agreement on the part of the defendant to pay plaintiff the bill for the lumber furnished, which is now sued for in this action, the plaintiff only showing that he said he would see that he was paid, and the claim is therefore barred by the statute of frauds and perjuries; and your verdict should be for defendant. Answer: Refused. [2]
    3. The evidence in the case discloses the fact that the check which was testified to by the plaintiff as having been given him by the defendant, was not given to him or payable to his order, but was made payable to the order or contractor, I. M. Norris; thus confirming the fact that there was no promise on the part of the defendant to pay the bill for which suit is brought in this action; and your verdict should be for defendant. Answer: Refused. [3]
    4. Under all the evidence in the case the verdict should be for the defendant. Answer: Refused. [4]
    Verdict and judgment for plaintiff for $126.17. Defendant appealed.

      Errors assigned were (1-4) above instructions, quoting them.

      Thomas F. Bailey, for appellant.
    — Assuming the testimony of the plaintiff as to the several promises made to him by the defendant to be true, yet those promises were of such a character as to bring them directly within the operation of the statute of frauds and perjuries: Gable v. Graybill, 1 Pa. Superior Ct. 29; Lewis v. Lumber & Mfg. Co., 156 Pa. 217; Dougherty v. Bash, 167 Pa. 429; Rancil v. Krohne, 31 Pa. Superior Ct. 130; Putnam Machine Co. v. Cann & Saul, 173 Pa. 392; Riegelman v. Focht, 141 Pa. 380; Haverly v. Mercur, 78 Pa. 257; Eshleman v. Harnish, 76 Pa. 97.

      Richard W. Williamson, for appellee.
    — A promise in form to pay or answer for the debt of another, which is accepted by the promisee in lieu of his claim against the original debtor so that the latter is extinguished, is not within the statute: Maule v. Bucknell, 50 Pa. 39; Nugent v. Wolfe, 111 Pa. 471; Townsend v. Long, 77 Pa. 143; Elkin v. Timlin, 151 Pa. 491; May v. Walker, 20 Pa. Superior Ct. 580; Beard v. Heck, 13 Pa. Superior Ct. 390; Burr v. Mazer, 2 Pa. Superior Ct. 436.
    April 18, 1910:
   Opinion by

Morrison, J.,

The facts in this case raise a question under the statute of frauds and perjuries (sec. 1, Act of April 26, 1855, P. L. 308): “That no action shall be brought .... whereby to charge the defendant, upon any special promise, to answer for the debt or default of another, unless the agreement upon which such action shall be brought, or some memorandum or note thereof shall be in writing and signed by the party to be charged therewith, or some other person by him authorized.”

While there are, in the record, four assignments of error, they only raise one question, to wit: the sufficiency of the plaintiff’s testimony to take the alleged promise of the defendant out of the statute of frauds and perjuries. We will discuss this question, first, under the plaintiff’s own version of the promise as disclosed by his own testimony. And second, is his testimony relied upon so clear, precise and indubitable as to take the case out of the statute by proving such a change of relation as to make what was originally the debt of Norris, that of the defendant, as an original undertaking and not as a collateral promise to pay the debt of Norris, if he did not pay it?

On October 26, 1907, the defendant entered into a contract with I. M. Norris to construct a dwelling house for him in the borough of Huntingdon. Norris began work on October 28, 1907, and on December 26 following, he was sold out by the sheriff. The plaintiff had a verbal contract with Norris to furnish the lumber for the house, and a considerable portion of the lumber had been furnished prior to the sale and the residue was furnished thereafter. All of this lumber was charged to Norris, and the bill or statement thereof, dated November 9, 1907, was made out by plaintiff against Norris and not against the defendant. There is not a particle of evidence that Norris was ever released from his liability to pay for this lumber. The recovery in the court below was permitted on the theory that the defendant by a promise, testified to by the plaintiff, made himself the principal debtor to the plaintiff for the lumber. The testimony which the court below and the jury found sufficient to render the defendant liable to pay for the lumber, notwithstanding the statute of frauds, was given by the plaintiff, and we may here remark that it was precisely and clearly denied by the defendant. The plaintiff testified that he contracted with Norris to deliver the lumber and that after he had delivered a portion of it, he went to see the defendant and told him that Mr. Norris was no good financially and Mr. Jackson said these words, “I shall see that not one man loses a penny on anything that goes into my house.” Again he testified: “He said he would see I was paid and I should make out the bill after I had the lumber in and he would pay it and I should get Mr. Norris to O. K. the bill, which I did.” After the lumber was in he said he made a bill and submitted it to defendant, and he said take the bill up and have Mr. Norris O. K. it and I will pay it. This bill was from the account of the plaintiff against Norris. After the bill was 0. K.’d by Norris, the undisputed evidence is that the defendant and Norris settled and a balance was found due Norris of $57.74, and the defendant, on January 4, 1908, wrote and mailed to the plaintiff the following: “Mr. Stouffer: I herewith enclose $57.74 to apply on your account. I hope to be able to help you out entirely before the job is finished. Yours, Theodore C. Jackson.”

The plaintiff clearly testified that he made his contract to furnish the lumber in question with Mr. Norris about October 28, 1907; that the contract was verbal and it embraced what lumber it took for defendant’s house. When asked to give the exact language used by the defendant in making the promise relied upon in this suit, the plaintiff testified: “Mr. Jackson said, I shall see that not one man shall lose a penny for material that goes into my building. You go ahead and put in the lumber and everything will be all right. I will see that you will be paid.” Again he testified: “ Q. Now what did Mr. Jackson say to you? A. He said exactly this: he said he would take the money off Mr. Norris and pay me. Q. When did he say that to you? A. Well, the lumber was not half in.” Again: “Q. Did you swear that Mr. Jackson had promised to assume this bill before the sheriff's sale? A. I did not say that he would assume it at any time; he said he would see it paid.”

Now in reply to this testimony the defendant absolutely denied making any such promise to plaintiff. What he claimed to have promised was to undertake to get Norris to permit him to apply money which he might thereafter owe Norris to the payment of the plaintiff’s lumber bill, and his testimony is uncontradicted that he did pay the balance he owed Norris to the plaintiff, to wit, $57.74, and that by reason of the death of Norris his contract was not completed and the defendant was not indebted to him or his estate thereafter.

The learned court below in what is called a decree, in the appellant’s paper-book, cites and relies on several cases to justify submitting the case to the jury. But these cases have no bearing on the question, unless the evidence had shown that the defendant was indebted to Norris or had in his hands a fund in some manner furnished by Norris out of which the plaintiff’s claim was to be paid by the defendant.

The cases cited by the court, which we say have no bearing on the present question, are Adams v. Kuehn, 119 Pa. 76; Delp v. Brewing Co., 123 Pa. 42; Sargent v. Johns, 206 Pa. 386. The latter case is not in point because as appears in Mr. Justice Mitchell’s opinion: “ No question of the statute of frauds arises, for by the taking of the entire stock a consideration passed to defendants’ and Alleman’s creditors, though not parties to the contract, were parties to the consideration within the principles of Delp v. Bartholomay Brewing Co., 123 Pa. 42, and Adams v. Kuehn, 119 Pa. 76. Plaintiffs, therefore, as such creditors were entitled to sue in their own names if their claims were in fact within the consideration, or on the principle of estoppel if they were led to believe so, and to act upon such belief to their prejudice in reliance on a notice authorized or adopted by defendants.”

The court also cites Burr v. Mazer, 2 Pa. Superior Ct. 436, and Kelly v. Baun, 6 Pa. Superior Ct. 327, but those cases on the facts before us, have no application. This case, under its facts, as testified to by the plaintiff, we think is controlled by Lewis v. Lumber and Mfg. Co., 156 Pa. 217, and kindred cases. In that case the question was whether the undertaking of the defendant was an original one making the claim a debt of its own, or was it a collateral undertaking to be liable for the debt or default of another. In that case the plaintiff was working for Avery peeling hemlock bark. The defendant lumber company was interested in a sense because Avery had a contract to peel the bark for it. The words relied on to make the defendant liable were these: “Keep on to work just as you have been to work, and we will see you paid.” If you keep on to work for Avery just as you have been to work, we will be responsible for his promise to pay you. The latter sentence is the language of Mr. Justice Williams in expressing his view of the meaning of the above quoted words. The learned justice then says: “This was a collateral undertaking. It was an agreement to be liable for the debt or default of another. . . . This action is not brought for wages on an original contract of hiring, but for a balance due upon the plaintiff’s contract with A very. ... If Avery had not made default the lumber company could under no circumstances have been made liable to the plaintiff. Because he has made default this suit is brought on a promise to be liable for such default. It is not easy to see how a case could be imagined that would fall more clearly under the statute than the one now before us.”

So we say as to the present case. The plaintiff testified that he made a contract with Norris to furnish all of the lumber for the defendant’s house and he furnished it and charged it to Norris and made his bill or statement of account against Norris, and the defendant only paid thereon the amount he owed Norris, after the latter had marked the bill O. K. The debt was the debt of Norris, and the undertaking of the defendant, as stated by the plaintiff himself, was to see that plaintiff’s claim against Norris would be paid. If this was not a collateral undertaking to pay the debt of another, then we fail to correctly interpret the testimony. We also cite Gable v. Graybill, 1 Pa. Superior Ct. 29, where President Judge Rice elaborately discussed the questions involved in a similar case. In that case it is said: “ And when a change of relation is alleged for the purpose of taking the case out of the statute, it lies upon the plaintiff to prove it 'by clear and indubitable testimony:’ Eshelman v. Harnish, 76 Pa. 97. The evidence to change an existing contract relation between the plaintiff and a third party, and to prove a promise by the defendant to pay the debt of another as a new and original undertaking, and not a contract of suretyship, must be clear and satisfactory: Haverly v. Mercur, 78 Pa. 257.” We also refer to the numerous cases cited by Judge Rice in his opinion.

Our second proposition is that the testimony of the plaintiff is not so clear, precise and indubitable as to warrant the court in permitting a jury to find that the defendant was liable on a new and original undertaking to pay for the lumber in question. The plaintiff in his testimony falls short of such clear and precise testimony as the authorities require. In our opinion, taking his testimony and that of the defendant, and the writings in evidence, including the bill of lumber and the letter of the defendant of January 4, 1908, the only reasonable interpretation of the evidence is that the parties, at the time of the conversations testified to, only contemplated that the defendant would endeavor to pay the plaintiff for the lumber out of such sums of money as he might owe Norris in cáse he completed the house in accordance with the contract. But if we are wrong in this view, on no theory of the evidence can we find that the defendant undertook to do more than to pay the plaintiff for the lumber, in case Norris made default in such payment, and this oral promise, as we have seen, is void under the statute.

At the trial the learned court below overruled a point asking for a binding instruction in favor of the defendant and granted an exception and sealed a bill (fourth assignment). We sustain this assignment. Judgment reversed.


author: Orlady, J.,

text:
    Potter Gas Company, Appellant, v. Dunshie.

      Taxation — Oil and gas lands — Separation of surface from minerals.

    Where a person takes a conveyance of all the petroleum and gas contained in a tract of land, and covenants for himself, grantees and assigns to “pay all taxes assessed upon said premises" thereafter, and it appears that he goes into physical and visible occupancy of the surface for the purpose of developing the minerals, he will be liable for all the taxes assessed against the “said premises" whether for surface or for minerals.
    Argued Oct. 28, 1909.
    Appeal, No. 107, Oct. T., 1909, by plaintiff, from decree of C. P. Potter Co., March T., 1909, No. 1, dismissing bill in equity in case of Potter Gas Company v. Fred Dunshie Collector of Sharon Twp. and Sharon School Dist., the Township of Sharon, the School District of Sharon Twp., C. D. Austin et al.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Bill in equity for an injunction. Before Ormerod, P. J.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was decree dismissing the bill.

      Archibald F. Jones, with him W. I. Lewis and R. R. Lewis, for appellant.
    — The owner of surface land can no more be held for the tax upon the mineral strata, after a severance, than can the owner of the mine be held for the taxes upon the surface: Caldwell v. Copeland, 37 Pa. 427; Powell v. Lantzy, 173 Pa. 543; Tiley v. Moyers, 25 Pa. 397; Canal Company v. Hughes, 183 Pa. 66; Lillibridge v. Coal Company, 143 Pa. 293; Irwin v. Bank, 1 Pa. 349; Logan v. Washington County, 29 Pa. 373; Hutchinson v. Kline, 199 Pa. 564.

      A. N. Crandall, for appellees.
    April 18, 1910:
   Opinion by

Orlady, J.,

The plaintiff company is the successor in title of the Eulalia Gas Company, which secured title to the property affected by this controversy, by deed dated October 6, 1898, between Alfred S. Brown and others and the Eulalia Gas Company, in and by which the grantors convey to the grantees, their successors, and assigns, all the petroleum, gas, etc., contained in 715 acres of land, and by which they are given the right to lay and maintain oil, gas, water, steam lines and pipes upon the premises for the purpose of producing oil and gas therefrom. The important clause in the deed is as follows: “Said second party, its successors, grantees and assigns, shall pay all taxes assessed upon said premises from this date.” The land was assessed as a whole until the triennial assessment of 1907, when the original grantors having then parted with their title to the surface, the Potter Gas Company requested the commissioners of Potter county to separately assess the oil, gas and mineral estate, and the surface was assessed in the name of Hall and Brown. In 1908 the assessment of oil, gas and minerals to the plaintiff company -was dropped from the records by a mistake; and the assessment of the surface, however, remained unchanged.

The plaintiff company is operating twenty-three wells upon this tract, which produce both petroleum oil and natural gas, and is occupying the surface of the land in the usual and customary manner, for the purpose of producing oil and gas by the methods in general use.

The tax collector for the purpose of collecting the tax for the years 1907 and 1908, against the surface of the land, levied on the personal property of the gas company, when the plaintiff filed a bill in equity to restrain the collector from selling the property, claiming that it was not an occupier of the surface within the meaning of the tax laws. The case was heard on bill and answer, when the court dismissed the bill, holding that the plaintiff was an occupier of the surface, and that as the conveyance of the oil, gas and mineral estate contained a cóvenant in regard to the payment of taxes, the plaintiff had no standing in a court of equity. The court found as a fact, which is not excepted to, that the plaintiff company had occupied the land for several years by its employees and teams for all operating purposes, had erected derricks for use in drilling wells, constructing lines of pipe to conduct the gas and oil from the wells, and erected six large oil tanks for the storage of oil. While the derricks had been removed after the wells had been dialled, the plaintiff’s employees were constantly in attendance at the wells, lines and tanks, storing tools, pipes and materials on the ground, crossing and recrossing the land at any and all times necessary and convenient to care for the pipes and tanks, and to erect and locate any lines or tanks as needed.

. A careful examination of the testimony warrants the conclusion reached by the learned trial judge, and it was a very natural conclusion for the assessor to find that the plaintiff company had- physical and visible occupancy of the surface of the real estate over .the entire tract. It was not his business to inquire how the improver holds the property, whether by title proper or improper, or by no title at all. This concerns neither him nor the public, for the question is how the taxes shall be collected, if seated, then from some person, if unseated then from the land itself: Stoetzel v. Jackson, 105 Pa. 562; Kitchen v. Smith, 101 Pa. 452.

In its special covenant to “ pay all taxes assessed upon said premises” the plaintiff precludes itself from denying its present liability. The reason given for the separate assessment could not affect its liability to pay the taxes, as under its covenant, this was a covenant running with the land: Bradford Oil Co. v. Blair, 113 Pa. 83; Washington Natural Gas Co. v. Johnson, 123 Pa. 576.

The words “said premises” are used by the parties in their deed in four different places and in each place the words refer to the whole property, that is surface, oil, gas and minerals, and the court so finds, to which no exception has been filed. The consideration is very clearly stated to be a cash payment, a reservation of one-eighth of the oil, and the payment of all taxes assessed upon said premises from this date. A covenant to pay rent or royalty for oil runs with the land: Fennell v. Guffey, 139 Pa. 341; Williams v. Short, 155 Pa. 480; Rohn v. Odenwelder, 162 Pa. 346.

The decree of the court below is affirmed.


text:
    Fahey, Appellant, v. Kennett Square Borough.

      Boroughs — Waters—Sale of water — Act of April 10,1873, P. L. 731.
    Under the Act of April 10, 1873, P. L. 731, a borough may deliver water which it takes from a stream, to a railroad company within the limits of the borough for use on its locomotives, and also to an owner of property in the borough, who pipes some of the water to his greenhouses upon a portion of the same property lying outside the borough.
    Argued Nov. 16, 1909.
    Appeal, No. 62, Oct. T., 1909, by plaintiffs, from judgment of C. P. Chester Co., Jan. T., 1909, No. 88, for defendant non obstante veredicto in case of John Fahey et al. v. Kennett Square Borough.
    Before Rice, P. J., Henderson, Morrison, Head, Beaver and Porter, JJ.
    Affirmed.
    Trespass for diversion of water from a stream.
    At the trial the jury returned a verdict for plaintiffs for $1.00. Subsequently on a rule for judgment non obstante veredicto, Butler, J., filed the following opinion:
    The facts in the case are free from dispute, and without discussion of the legal questions, a verdict was directed for the plaintiff, so that after a full examination the case might finally be disposed of without another submission to a jury.
    The plaintiff is a lower riparian owner upon a stream from which the defendant takes its water supply. It is conceded ■ that under the Act of April 10, 1873, P. L. 731, the defendant is authorized to take an unlimited quantity of water from the stream in question for the purpose of introducing a sufficient supply within its limits for the use of its people and its general needs. It appears that of the water thus taken some is sold and delivered within the borough to the Penna. R. R. Co. for use in its locomotives, its tracks passing through the borough, and in one instance water is delivered to a property within the borough; and some of it is then piped by the owner to his greenhouses which are upon a portion of the same property lying-outside of the borough.

      The plaintiff contends that the defendant is without authority to furnish water for use outside of the borough, and that to the extent it does so, in the two cases recited, it is unlawfully depleting the stream and is answerable in this action of trespass. Apart from other consideration, we think the plaintiff fails to make out a case because we are of the opinion that the furnishing of water, challenged by the plaintiff, is a proper, lawful exercise of the authority conferred upon the defendant by the recited act. In such instance the water is delivered to and becomes the property of the consumer, within the borough, and the fact that in its consumption and use by them, some of it is carried out of the borough, is unimportant. The reasoning, and views of the court, presented in Bland v. Tipton Water Co., 222 Pa. 285, so fully sanction the action of the defendant here, that it would be idle for us to attempt any further demonstration. We may say that if the defendant should enter into a contract to furnish water withjn the borough, to one who would not himself consume it, but would pipe, or otherwise convey dt away for the purpose of retailing it to others, a different question, requiring a different decision, might be presented.
    The rule for judgment, notwithstanding the verdict, is made absolute.

      Error assigned was in entering judgment for defendant non obstante veredicto.

      J. Frank E. Hause, for appellants.

      A. M. Holding, for appellee.
    April 18, 1910:
   Opinion by

Morrison, J.,

In this case a verdict was taken for the plaintiff, the learned court overruling a point presented by defendant’s counsel, asking for a binding instruction in favor of the defendant. The action of the court in refusing said point was duly excepted to and the learned court at once granted a rule to show cause why judgment should not be entered in favor of the defendant non obstante veredicto.

Subsequently, after argument, the court made the rule absolute and entered judgment for the defendant, and granted an exception to the plaintiff. The opinion of the learned court below and the case of Bland v. Tipton Water Co., 222 Pa. 285, so completely vindicate the judgment in the present case that it would be idle for us to attempt any further demonstration of the correctness of the judgment. The reporter will see that the opinion of the court below is printed in the report of the case.

The assignments of error are all overruled and the judgment is affirmed.


text:
    Greenfield, Appellant, v. Golder.

      Bankruptcy — Exemption—Waiver—Sheriff.
    Where a bankrupt’s personalty has been appraised and set apart to him under the state exemption law, it may be seized on a levy under a judgment against the bankrupt containing a waiver of exemption, and for such levy, no action lies against the sheriff.
    Argued Nov. 17, 1909.
    Appeal, No. 183, Oct. T., 1909, by plaintiff, from judgment of C. P. Chester Co., Aug. T., 1909, No. 10, on demurrer to statement of claim in case of Passmore Greenfield v. David M. Golder.
    Before Rice, P. J., Henderson, Morrison, Head, Beaver and Porter, JJ.
    Affirmed.
    Trespass against the sheriff for an alleged wrongful levy and sale. Before Butler, J.
    The facts appear by the opinion of the Superior Court.

      Error assigned was in sustaining demurrer to statement of claim.

      J. Frank E. Hause, with him Elbert N. Pusey, for appellant.
    — The very purpose of the restraining order was to strike down the illegal preference obtained by the execution and levy and when the order was made, it related not only to the execution but also to the waiver of the exemption. With this order made, the sheriff’s hands were tied, not only as to the property over and above that which might remain after the exemption was set apart, but also as to the exempt property: In re Bolinger, 6 Am. Bank Rep. 171; In re Jackson, 8 Am. Bank Rep. 594; In re Brumbaugh, 12 Am. Bank Rep. 204; Roden Grocery Co. v. Bacon, 13 Am. Bank Rep. 254; Lockwood v. Bank, 190 U. S. 294 (23 Sup. Ct. Repr. 751).
    The bankruptcy court had complete jurisdiction in the premises and for the preservation of the bankrupt’s estate, as it existed at the time of the adjudication, it had and it exercised its power to stay the hand of the creditor and of the sheriff in the attempt to collect the debt. When the decree prohibiting further process on the judgment was entered it was binding upon every one and for all purposes until modified or reversed: Wagner v. U. S., 4 Am. Bank Rep. 596; Kurtz v. R. R. Co., 187 Pa. 59; Bank v. Bartlett, 35 Pa. Superior Ct. 593.

      George B. Johnson, for appellee,
    cited: Jackson’s Case, 8 Am. B. R. 594; Collier on Bankcy., 3d ed., 82; Woodruff v. Cheeves, 5 Am. B. R. 296; Roden Grocery Co. v. Bacon, 13 Am. B. R. 254; Brumbaugh’s Case, 12 Am. B. R. 204; Lockwood v. Exchange Bank, 190 U. S. 294 (23 Sup. Ct. Repr. 751).
    April 18, 1910:
   Opinion by

Morrison, J.,

The appellant’s counsel states the question involved as follows: “A fi. fa. was issued oh a judgment containing a waiver of the exemption and personalty was levied upon. The defendant was subsequently adjudicated a bankrupt and an order was made by the bankruptcy court restraining the plaintiff in the execution and the sheriff from further proceeding on the writ and from collecting the judgment. In the bankruptcy proceedings the personalty levied upon was set aside under a claim for the exemption. Can the property thus set aside be sold on an alias writ on the same judgment while the restraining order is in force?”

The National Bank of West Grove held a judgment against Passmore Greenfield, containing a waiver of the exemption. A fi. fa. was issued on it on March 3, 1909, and personalty levied upon. On March 9, 1909, Greenfield was adjudged a voluntary bankrupt, and on March 11, following, the district court of the United States for the eastern district of Pennsylvania, upon petition of the bankrupt, entered a decree restraining the bank and the sheriff from further proceeding against the personalty “upon their judgment obtained and upon the execution thereon,” and the restraining order was duly served. Later, upon Greenfield’s application, the personalty thus levied upon was set aside under his claim for the exemption.

The fi. fa. above mentioned was abandoned and an alias writ was issued on April 22, 1909, levy was made by the sheriff on the exempted property and a sale followed with the restraining order neither discharged nor modified by any order of the bankruptcy court. The appellant brought an action against the sheriff in trespass to recover damages for this alleged illegal sale. The defendant then filed a demurrer to the statement of claim and the court below sustained the demurrer and entered judgment for the defendant on the ground that the restraining order of the United States court had reference only to the property of the plaintiff as it stood in the custody of that court when the order issued. We think the court below was clearly right. It has been decided over and over again by the United States courts and by other courts, and by this one, that when the bankrupt’s personalty has been appraised and set apart to him under the state exemption law the United States court has no further control over it and if any dispute arises*as to such property, the adjudication in regard thereto must be by the state court.

In In re Jackson, 8 Am. Bank. Reps. 594 (district court for the eastern district of Penna.) execution had been issued and levy made March 18, and March 27, a petition in bankruptcy was filed and a restraining order was issued forbidding further proceedings on the execution. McPherson, J., held: “After the property exempted has been separated and delivered, its subsequent fate does not concern us. If some one of the bankrupt’s creditors has already obtained, or should afterwards obtain, a lien upon it, it is not for this court to interfere with his right. ... I think the restraining order should be so modified as to permit the creditor to assert such right as he may have gained by his execution against such property as may be set aside to the bankrupt under his claim for exemption.”

“Now if this ruling is sound, subsection 67f of the bankruptcy act should be construed to mean that all levies shall be deemed null and void, only, as to the property which passes to the trustee for the benefit of the creditors of the bankrupt, but remain valid for enforcement under the state laws as to the bankrupt’s exempted property. This construction seems to be in accordance with the real meaning of said section. No good reason is apparent for holding the judgment, execution and levy, void as to the bankrupt’s exempted property. It does not seem that the district court has any control over it, except such as may be necessary to aid in having it appraised and set apart under the state laws:” Bank v. Bartlett, 35 Pa. Superior Ct. 593.

It has been held many times that the property appraised and set apart to a bankrupt may be seized and sold on an execution issued on a judgment waiving exemption. This being so we cannot see how the plaintiff herein could maintain an action of trespass against the sheriff for obeying the commands of an execution issued on a judgment that waived exemption.

The United States court that issued the restraining order has never sought to enforce said order to protect the plaintiff’s exempted property. When said property was appraised and set apart to the bankrupt (the plaintiff), that act took it effectually out of and from under said restraining order, and there was no necessity of having said order modified. If the plaintiff thought said order was in force,.as to the exempted property, why did not he and his counsel try to get an attachment from the United States court against the sheriff for violating said order?

We think the following cases, and those cited therein, fully sustain the court below in holding that the plaintiff’s action of trespass would not lie against the sheriff: Lockwood v. Bank, 190 U. S. 294; Sharp v. Woolslare, 25 Pa. Superior Ct. 251; Zumpfe v. Schultz, 35 Pa. Superior Ct. 106; Bank v. Bartlett, 35 Pa. Superior Ct. 593.

The assignments of error are all overruled and the judgment is affirmed.


text:
    Moss, Appellant, v. Philadelphia Rapid Transit Company.

      Negligence — Street railways — Damages—Traumatic tuberculosis — Evidence.

    In an action against a street railway company to recover damages for personal injuries, where the plaintiff claims as an element of damages the development of traumatic tuberculosis from the injury received at the time of the accident, the trial judge commits no error in directing the jury not to take into consideration the tuberculosis of the plaintiff, where no evidence was offered of external injuries or internal lesion, and the physicians called by the plaintiff could not testify that the tuberculosis of which the plaintiff was suffering at the time of the trial was the result of the accident.
    Argued Dec. 16, 1909.
    Appeal, No. 207, Oct. T., 1909, by plaintiff, from judgment of C. P. No. 2, Phila. Co., March T., 1907, No. 3472, on verdict for plaintiff in case of Adeline S. Moss v. Philadelphia Rapid Transit Company.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Sulzberger, P. J.
    At the trial the case practically turned upon the question whether the plaintiff was entitled to recover damages for tuberculosis of which she was suffering, and which she alleged was due to the injury sustained at the time of the accident.
    The court charged in part as follows:
    [The evidence as to tuberculosis, given by a perfectly able and competent expert, is this: that he has had large experience, and he detailed the first-class institutions in which he got it; that he would be all right in saying that his personal observation of tuberculosis of the lungs comprehended at least a thousand cases; and that of all those thousand cases he could only remember five that were traceable to injury or trauma; that, moreover, according to the common consent of the medical profession, pulmonary consumption is due to the presence in the body of a destructive, minute organism called the tubercle bacillus; that in nearly all the cases that tubercle bacillus inhabits the system or is drawn from the outside; and that in some cases the tubercle bacillus finds its room for activity when the system is weakened by another cause and its power of resistance is impaired. Then, what becomes of his figures of five in a thousand? Give them an even chance, two and a half of those cases that were produced by trauma, were cases of people who already had the tubercle bacillus in them, which were made active by trauma, and the other two and a half were cases in which the constitution suffered. We do not need to cut it so fine. I charge you as a matter of law that the evidence of a possibility of five cases in a thousand, is not evidence in a legal sense; that it would reduce the judgment of the jury to mere conjecture; that mere conjecture is not to be listened to in a court of law; that the lowest form of evidence we recognize, is probability; that conjecture is below the proper standard of probability; that five cases in a thousand is not within the region of probability, but is in the region of conjecture; and that therefore we are not to give her any damages for tuberculosis as being caused by this injury. So that if you find the defendant guilty of negligence, you are limited in your verdict to the ascertaining, first, whether she did experience pain and suffering, and, second, if so, what was the value of the pain and suffering which she suffered during the next two, three or four weeks in consequence of the shock.]
    Verdict and judgment for plaintiff for $300. Plaintiff appealed.

      Error assigned was portion of charge as above, quoting it.

      Augustus T. Ashton, with him Harry A. Mackey, for appellants.
    — It is not necessary that the expert should state that in his opinion the injury in question was actually caused by the accident: Brashear v. Traction Co., 180 Pa. 392; McCafferty v. R. R. Co., 193 Pa. 339; Dickson v. Hollister, 123 Pa. 421; Temme v. Schmidt, 210 Pa. 507.
    Cases in which pulmonary tuberculosis resulted from an injury and in which recoveries were sustained are as follows: Hurley v. N. Y. & Brooklyn Brewing Co., 13 Hun. App. Div. (N. Y.) 167; Seckinger v. Mfg. Co., 129 Mo. 590 (31 S. W. Repr. 957).

      Thomas Learning, with him David J. Smyth, for appellee.
    April 18, 1910:
   Opinion by

Orlady, J.,

The plaintiff recovered a verdict in the court below for $300, and her contention in this court is, that the trial judge erred in restricting the submission of the case to the jury, by directing them not to consider the evidence relating to tuberculosis of which she suffered at the time of the trial, as having been caused by the injury sustained in an accident which occurred on March 4, 1907, and limited her right to recover damages for the pain and suffering necessarily incident to her injuries. The verdict established the negligence of the company, and the testimony is practically uncontradicted, that at the time of the accident this plaintiff was seated in a crowded car, and immediately in front of her stood her friend, Dr. Moss. Amollision occurred between the car and a wagon on the track, when Dr. Moss was thrown violently against her, his hands striking her on the breast, when as she states it, “ I was dazed; I felt pain at chest and heart and severe headache, and I could not stir from the place.” The car was stopped and she was removed to her home, where she said she remained in bed for two weeks with severe headache, was weak and nervous.

Two weeks thereafter- — -March 17 — she was married to Dr. Moss; her health continued to be not at all good, and at the time of the trial, on April 14, 1909, she was unquestionably suffering from tuberculosis, having the well-defined symptoms of loss of flesh, night sweats, and the presence of tubercle in the sputum.

The testimony in the case by which it is sought to connect her condition at the time of the trial with the injuries received two years preceding, is very meager and uncertain. An eminent expert who saw her for the first time two months before the trial and a second time two days preceding it, when she exhibited undoubted evidence of pulmonary tuberculosis or consumption of the lungs, testified quite positively in regard to her condition at the time of the trial and that there is no pathological doubt that pulmonary tuberculosis not infrequently follows trauma to the chest. That it is impossible to reduce the proportion of cases to a ratio, but that prominent physicians recognize this as a fact, as occurring in two ways, first, there may be a latent or smoldering focus of the disease in the body — such as a tubercle gland — and which through injury to it, flares up and disseminates or spreads the disease through the system; the other method consists in the damaging or weakening of an organism in general by trauma, so that the tubercle bacillus finds a ready soil in which to grow and cultivate and produce tuberculosis, and further that in this particular case, a physical examination of this plaintiff developed the fact that there was no condition of the glands to indicate a latent tubercular focus, and that the pleuritic condition was so extensive that there must have been a very decided pleuritic inflammation present to cause the amount of thickening and friction sounds which were noticed, but this was only relative and could not be stated definitely. He testified further that medical literature is full of cases of trauma producing pulmonary tuberculosis, and tuberculosis to other parts of the body, such as surgical tuberculosis in the bones, which is an exceedingly common event, and when asked if in his opinion ther,e were seeds of tuberculosis in the plaintiff at the time of the injury, or that it was merely the degeneration of the system which invited it, he frankly answered that that was purely hypothetical.

The fact that the expert had seen but five positive cases in his personal practice, would not be a sufficient reason for excluding his testimony. Five, or any other reasonable number of cases, definitely established by capable witnesses, might be just as convincing to a jury as a much larger number, and in dealing with matters of this magnitude and delicacy, we are obliged to get our information from the only authoritative source. Learned lawyers may differ from learned doctors on this question, but it being a question of fact to be solved by the jury and not by the court, we can only see to it that the controverted fact is submitted to the proper tribunal under proper instructions.

The difficulty in the plaintiff’s case lies in the lack of evidence to trace her present unfortunate condition back to the injury of two years before, as a proximate cause. It is quite unlike the testimony of the experts in Blasband v. Phila. R. T. Co., ante, p. 325, where they “unhesitatingly stated that the relation between the injury as a cause and the present condition of the patient as an effect was obvious, and from the admitted facts in regard to the case, the tuberculosis from which the plaintiff then suffered, was caused by the injury sustained at the time of the accident.”

The testimony in relation to tuberculosis was properly withdrawn from the consideration of the jury, not entirely for the reason given by the learned trial judge, but because the testimony failed to connect the alleged cause with the present effect, and the farthest Dr. Salinger would go, was that tuberculosis could follow such a trauma, but he had not seen enough of this patient or have direct knowledge of her medical history to trace the disease to its incipiency with any confidence in his own judgment. Dr. Novick, the physician in charge of the case, had known her for many years, and while he saw her soon after the accident, frankly stated that the cough of which she first complained did not indicate a tuberculous condition; that he had no suspicion at that time of a tuberculous condition and could not give a date when he first did discover the presence of this disease. There was no evidence of external injury or internal lesion; no breaking of any tissue, or interference with any functional duty; there was severe nervous shock and headache and pain, but without further testimony, it could be nothing more than a mere conjecture to reasonably associate this accident as a proximate cause with the tuberculosis from which she suffered at the time of the trial.

The assignment of error is overruled and the judgment is affirmed.


text:
    Philadelphia v. Miller, Appellant.

      Statutes — Repeal—Rules of construction — Grandparents and Grandchildren — Support—Poor law — Acts of June 15, 1836, P. L. 54, and April 6, 1905, P. L, 112.
    1. The legislature is presumed to know the law and to be consistent.
    2. A repealing clause in a statute, because of repugnancy, has no greater effect than an implied repeal because of repugnancy.
    3. To justify a repeal, whether because of a repealing clause or by implication on the ground of repugnancy, that repugnancy must be real and substantial and not fanciful and visionary.
    4. Repeal by implication is not favored.
    5. In the construction and enforcement of statutes, they are to be applied and enforced in the inverse order of their enactment.
    6. Section 28 of the Act of June 13, 1836, P. L. 541, making grandparents liable for the support of their grandchildren is not repealed by sec. 4 of the Act of April 6, 1905, P. L. 112.
    Argued March 1, 1910.
    Appeal, No. 271, Oct. T., 1909, by defendant, from order of Q. S. Phila. Co., Nov. T., 1909, No. 1,287, on grandparent to pay weekly allowance for support of a grandchild in case of City of Philadelphia — Department of Public Health and Charities v. John Wesley Miller.
    Before Rice, P. J., Henderson, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.

      Petition for an order for support.
    From the record it appeared that the petitioner, Jennie D. Miller, filed her petition or affidavit November 12, 1909, alleging that she resided at 1632 Edgeley street, Philadelphia and was the wife of John J. Miller and mother of his two children John W. Miller aged ten years and Frank Miller aged five years who were poor and unable to work. That the said children had a grandfather John Wesley Miller residing at 1932 Wallace street, Philadelphia and that he had means and was well able to support the minor children of his son John J. Miller.- Upon this affidavit a citation was issued to John Wesley Miller directing him to appear and show cause why an order should not be made upon him to support his said grandchildren.
    John Wesley Miller filed an answer on November 30, 1909, admitting that he was the grandfather of the said minors and that they were the children of his son John J. Miller. He further submitted that the support of poor persons by their relations is now regulated by the Act of April 6, 1905, P. L. 112, and that said act does not include grandparents. Also that said act by the sixth section thereof repealed all acts or parts of acts inconsistent therewith and that any prior acts including grandparents had been repealed. The answer also denied any power of the court to compel a grandparent to support his grandchildren apart from the authority of statute. The answer further set forth that the said John J. Miller had another child Ethel Miller whom he, the said John Wesley Miller, had been supporting. Also that his son John J. Miller resided at 180 Seventh avenue, Brooklyn, New York; that to the best of respondent’s knowledge and belief the said John J. Miller was entirely able and competent to support his said two sons and respondent was informed that his son was desirous of receiving said children to live with him. Also that respondent was informed that his said son was willing to appear in court if assured that he would not be arrested while so doing.
    The answer further called for proof of the bona fide residence of said grandchildren in Philadelphia or Pennsylvania.

      There was no replication or written reply filed to the answer.
    A hearing was held November 30, 1909, at the conclusion of which the court made an order directing the said John Wesley Miller to pay $3.00 a week for the support of his grandchild John W. Miller and also $3.00 a week for the support of his grandchild Frank Miller. The respondent appealed.

      Error assigned was the order of the court.

      Alfred I. Phillips, for appellant.
    — A careful examination of the act of 1905, shows that it repealed sec. 28 of the act of 1836 and that grandparents being omitted in the new law are no longer legally responsible to support their grandchildren: Assn. v. Assn., 159 Pa. 308; Spees v. Boggs, 204 Pa. 504; Reeves’s App., 33 Pa. Superior Ct. 196; Phillips v. Barnhart, 27 Pa. Superior Ct. 26; Knoblauch’s License, 28 Pa. Superior Ct. 323; R. R. Co. v. Bogert, 209 Pa. 589; Johnston’s Est., 33 Pa. 511; Fort Pitt B. & L. Assn. v. Model Plan B. & L. Assn., 159 Pa. 308.

      William T. Connor, assistant city solicitor, with him J. Howard Gendell, city solicitor, for appellee.
    — The act of June 13, 1836, was not repealed by the later act: Hickory Tree Rd., 43 Pa. 139; Brown v. Com., 21 Pa. 37; Erie v. Bootz, 72 Pa. 196; Sifred v. Com., 104 Pa. 179; Com. v. DeCamp, 177 Pa. 112; Com. v. Vetterlein, 21 Pa. Superior Ct. 587; York Gazette Co. v. York County, 25 Pa. Superior Ct. 517; Com. v. Mills, 26 Pa. Superior Ct. 549; Com. v. Nagle, 31 Pa. Superior Ct. 175; Reeves’s App., 33 Pa. Superior Ct. 196; Poor District v. Poor Dist., 16 Pa. Dist. Rep. 384.
    April 18, 1910:
   Opinion by

Beaver, J.,

Section 28 of the Act of June 13, 1836, P. L. 541, provides: “Section 28. The father and grandfather, and the mother and grandmother, and the children and grandchildren, of every poor person not able to work, shall, at their own charge, being of sufficient ability, relieve and maintain such poor person, at such rate as the court of quarter sessions of the county where such poor person resides shall order and direct, on pain of forfeiting a sum not exceeding twenty dollars for every month they shall fail therein, which shall be levied by the process of the said court, and applied to the relief and maintenance of such poor person.”

By sec. 4 of the Act of April 6, 1905, P. L. 112, it is also enacted: “Section 4. The husband and wife, the father, the mother, and the children, respectively, of every poor person shall, at their own charge, being of sufficient ability, relieve and maintain such poor person, at such rate as the court of quarter sessions of the peace of the county where such poor person resides shall order and direct, on pain of forfeiting a sum not exceeding twenty dollars for every month they shall fail therein, which shall be levied by process of said court and be applied to the relief and maintenance of such poor person. And it shall be the duty of the directors or poor law officers of such county, or either of them, to make applications to the said court by petition, under oath, setting forth the necessary facts in all such cases.” Section 6 of this act provides that, “All acts or parts of acts inconsistent with the provisions of this act are hereby repealed.”

The appellant contends that, under the provisions of the act last quoted, sec. 28 of the act of 1836, supra, is repealed, on the ground that the provisions of the latter are inconsistent with the former. There is no express repeal and, if the act of 1836 making grandparents liable for the support of their grandchildren, as expressed in the act, is repealed by the act of 1905, it must be by implication. The repealing clause in the latter act gives no greater efficiency as to the repeal than if nothing were said upon the subject, because a later act which in its terms is repugnant to a prior one is to be regarded as repealing the former by implication. But we can see nothing repugnant between these statutes. It is true that grandparents and grandchildren are not mentioned in the act of 1905, but there is nothing in the act to show that their liability for the support of those for whom they are made and held liable under the act of 1836 ceases.

Calling to mind a few of the simple canons of construction of statutes, solidly buttressed by abundant authority, we have no difficulty in construing the acts herein referred to in entire harmony with each other and with the general scheme of legislation relating to this and cognate subjects.

The legislature is presumed to know the law and to be consistent.

A repealing clause, because of repugnancy, has no greater effect than an implied repeal because of repugnancy.

To justify a repeal, whether because of a repealing clau'se or by implication on the ground of repugnancy, that repugnancy must be real and substantial and not fanciful and visionary.

Repeal by implication is not favored.

In the construction and enforcement of statutes, they are to be applied and enforced in the inverse order of their enactment.

In Endlich on the Interpretation of Statutes (1888), sec. 182, it is said: “An author must be supposed to be consistent with himself; and, therefore, if in one place he has expressed his mind clearly, it ought to be presumed that he is still of the same mind in another place, unless it clearly appears that he has changed it. In this respect,.the work of the legislature is treated in the same manner as that of any other author. . . . The language of every enactment must be so construed, as far as possible, as to be consistent with every other which it does not in express terms modify or repeal. The law, therefore, will not allow the revocation or alteration of a statute by construction, when the words may have their proper operation without it.....It is impossible to will contradictions; and if two passages are irreconcilable, the earlier stands impliedly repealed by the later. ... Of course, subsequent legislation repeals previous inconsistent legislation, whether it expressly says so or not. In the nature of things it would be so, for contradictions cannot stand together.” In sec. 183: “Where, in a statute, there are several clauses which present, as compared with each other, an irreconcilable conflict, the one last in order of date or local position must, in accordance with this rule, prevail, and the others be deemed abrogated to the extent of such repugnancy; whether the conflicting clauses be sections of the same act, or merely portions of the same section.” The same rule is true of different statutes passed at different times.

In Brown v. County Commissioners, 21 Pa. 37, Judge Black, when chief justice of the Supreme Court, said, in his usual forceful way: “When two statutes are so flatly repugnant that both cannot be executed, and we are obliged to choose between them, the later is always deemed a repeal of the earlier. This rule applies with equal force to a case of absolute and irreconcilable conflict between different sections or parts of the same statute. The last words stand, and others which cannot stand with them go to the ground. But whenever two acts can be made to stand together, it is the duty of a judge to give both of them full effect. Even where they are seemingly repugnant, they must, if possible, have such a construction that one may not be a repeal of the other, unless the later one contains negative words, or the intention to repeal is made manifest by some intelligible form of expression. .

“That the law does not favor repeals by implication is a very old rule. Lord Coke s§,ys, it has ever been confined to repealing as little as possible of preceding statutes (Foster’s Case, 11 Rep. 56). The principle prevails even where the statutes are penal, and where the humanity of the law would plead for another construction (Gregory’s Case, 6 Rep. 19b.). With much stronger reason it applies to statutes which give powers to different persons. If the powers can subsist together, the grant of one is not a withdrawal of the other (Goldson v. Buck, 15 East. 372). These authorities have always been followed in Pennsylvania. One act of assembly is held to repeal another by implication only in cases of very strong repugnancy (Street v. Com., 6 W. & S. 209), or irreconcilable inconsistency (Com. v. Bank, 10 Pa. 442).”

In the case under consideration, we have a later statute, providing for the repeal of all acts or parts of acts inconsistent with the provisions of the act in question. Is there any inconsistency or repugnancy between sec. 28 of the act of 1836 and sec. 4 of the act of 1905? We cannot see wherein. Construing or applying, under the rule that the last shall be first; by the act of 1905, provision is made for support of poor persons by the husband and wife, the father, the mother and the children respectively of such person. In this case, we have no such person within the jurisdiction of the court. Is it inconsistent with this act, therefore, for the court to say to the grandfather of the poor person, who is within its jurisdiction, as it did, you are liable under the act of 1836 for the support of your grandchild, and, in the absence of any person indicated by the act of 1905 as liable for the support, you must assume that duty and burden. We can see no such inconsistency. On the contrary, the acts would seem to be in harmony with and to supplement each other and to be in entire accord with the general scheme which would seem to indicate that inheritable blood is liable for the support of anyone through whom, and in the order in which, it can inherit. The decree of the court seems to us not only based upon proper statutory authority but upon the dictates of reason and humanity as well. If the case were reversed and this were a question of the distribution of the estate of the grandchild, the grandfather would, of course, inherit, in preference to an escheat to the public. Why, therefore, should he not be liable for support rather than turn the grandchild over to the public?

The sections of these several laws under consideration are, we think, entirely consistent with each other and with the general scheme of legislation governing the relations which exist among persons of the same blood, and we are all of the opinion that the decree of the court below was proper and in accordance with law.

Decree affirmed and appeal dismissed at the costs of the appellant.


author: Per Curiam,

text:
    McGlynn, Appellant, v. Hoban.

      Church law — Affidavit of defense — Contract.
    In an action by an architect against a bishop of the Roman Catholic Church, trustee of a congregation, for services rendered, an affidavit of defense is sufficient to prevent judgment, which avers that the congregation in question was a corporation, and that the clergyman mentioned in the statement of claim as having ordered the work, had no authority to bind the defendants, and had not been authorized by them to pledge the credit of the congregation in question.
    Argued March 7, 1910.
    Appeal, No. 25, March T., 1910, by plaintiff, from order of C. P. Luzerne Co., discharging rule for judgment for want of a sufficient affidavit of defense in case of Owen McGlynn v. Rt. Rev. M. J. Hoban, Bishop of the Roman Catholic Diocese of Scranton, Pa. in trust for the Congregation of St. Mary’s Polish Roman Catholic Church of Natiticoke, et al.
    Before Rice, P. J., Hendeeson, Oelady, Head, Beavee and Poetee, JJ.
    Affirmed.
    Assumpsit for services.
    Rule for judgment for want of a sufficient affidavit of defense.
    The facts appear by the opinion of the Superior Court.

      Error assigned was order refusing to make absolute rule for judgment.

      Frank P. Slattery, for appellant.

      B. R. Jones, of Atherton cft Jones, for appellee.
    April 18, 1910:
   Per Curiam,

The affidavits of defense aver unequivocally that the Rev. Adolph Nowicki, the person named in the statement of claim, as having requested plaintiff to perform the work and furnish the plans and specifications, for which this suit was brought, had no authority in law or in fact, to bind the defendants, and was not authorized by them to pledge the credit of any of them, and especially St. Mary’s Polish Roman Catholic Church, for the payment of any work done and plans and specifications furnished. On the other hand, it is argued by plaintiff’s counsel that every Roman Catholic congregation in a diocese is in charge of a pastor, who is, according to the canons of the church, called also the administrator; that being so in charge, he must be the agent of either the bishop as trustee or the agent of the congregation; that the bishop as trustee had neither interest in the estate of the congregation nor power to control it or direct its management in any way, but that the control was entirely in the hands of the congregation; therefore, the pastor in charge must be the agent of the congregation. It will be seen that this argument is based on allegations relative to the authority of the pastor under the canons of the church. But these are matters of fact dehors the record which cannot be judicially taken notice of in the present stage of the case; therefore the argument cannot avail to overthrow the allegations of the affidavit of defense.

It is averred further in a supplemental affidavit that “St. Mary’s Polish Roman Catholic Church of Nanticoke, Pennsylvania, is a corporation for religious purposes,” and holds its property in accordance with the provisions of the Act of April 10, 1893, P. L. 14, whereas the argument of appellant’s counsel involves the assumption that it is an unincorporated religious congregation.

Another point to be noticed is that the deeds to Bishop Hoban in trust for St. Mary’s Polish Roman Catholic Church of Nanticoke, which are printed in appellant’s paper-book under the head “Title to Appellee’s Real Estate,” are not specifically referred to in the statement of claim or in the affidavits of defense and therefore are not before us for consideration.

We need not go into a further analysis of the statement of claim and the affidavit of defense. Enough has been said to show that there are matters of fact not appearing of record, or in dispute, the determination of which is essential to the final decision of the issue, and which could not be determined on the motion for summary judgment.

The appeal is dismissed at the costs of the appellant, but without prejudice to his right to a jury trial and a second appeal after final judgment.


author: Rice, P. J.,

text:
    Monahan v. Auman, Appellant.

      Judgments — Cautionary judgments — Frauds—Appeals.
    A simple contract creditor with no lien or charge on his debtor’s real estate, has no right after he has begun suit, to a cautionary judgment based on a petition averring that the defendant is about to confess judgments to others or sell his lands with intent to defraud the plaintiff.
    An appeal lies from an order refusing to strike off a cautionary judgment.
    Argued March 8,1910.
    Appeal, No. 32, March T., 1910, by defendant, from order of C. P. Luzerne Co., May T., 1907, No. 106, refusing to strike off cautionary judgment in case of F. J. Monahan v. William H. Auman, Jr.
    Before Rice, P. J., Henderson, Orlady, Head, Beaver and Porter, JJ.
    Reversed.
    Rule to strike off cautionary judgment.
    The opinion of the Superior Court states the case.

      Error assigned was the order refusing to strike off the cautionary judgment.

      Edward C. Klonower, with him James L. Lenahan, for appellant.
    — A cautionary judgment is not a right to a mere contract creditor: Shirley v. Watts, 3 Atkyns, 200; Wiggins v. Armstrong, 2 Johns. Ch. 144; Artman v. Giles, 155 Pa. 409; Kelly v. Herb, 157 Pa. 41; Mills v. Ry. Co., C. L. R. 5 Ch. App. Cases, 621; Hood v. Saunders, 11 Col. 106 (17 Pac. Repr. 102); Kankakee Mill Co. v. Kampe, 38 Mo. App. 229; Brumbaugh v. Jones, 70 Neb. 789; Haston v. Castner, 31 N. J. E. 697.

      M. J. Mulhatt, for appellee filed no printed brief.
    April 18, 1910:
   Opinion by

Rice, P. J.,

This action of assumpsit was brought in March, 1907; it was tried in 1908 and resulted in a verdict for plaintiff for $910.75; in June of the same year judgment was entered on the verdict; in October following an appeal was taken by the defendant to this court which on April 12, 1909, resulted in a judgment of reversal with a venire facias de novo; and on April 19, 1909, the record was remitted to the common pleas. In the following month the plaintiff presented his petition to that court.setting forth the above facts; also that the defendant was the owner of certain described real estate in Luzerne county; that since the institution of this suit he had confessed two judgments, one for $1,000 and the other for $800; that the plaintiff was informed and believed that certain property which defendant owned in Philadelphia at the time the suit was brought had been swept away by judgments fraudulently confessed by him; and that the plaintiff was apprehensive that the defendant would sell or incumber the Luzerne real estate for the purpose of hindering, delaying and defrauding the plaintiff in the collection of an honest and just claim. The petition concluded with a prayer that the court enter a “ cautionary judgment” against the defendant for $912.80 with interest from March 20,1907: “as a lien on the said real estate. and in order to secure your petitioner the amount which may be found due him upon the final disposition of the suit.” Upon presentation of the petition, of which no notice appears to have been given the defendant, the court entered a “cautionary judgment” in favor of the plaintiff and against the defendant for $1,026, the amount claimed. On the trial of the case on June 7, 1909, the court entered a compulsory non-suit and granted a rule to show cause why it should not be taken off, which is still pending. On August 3, 1909, the court granted a rule to show cause why the cautionary judgment should not be struck off, and from the subsequent order denying the motion “without prejudice to renew this application at any time when the action of the court in the disposition of the case justifies it,” this appeal was taken.

It will be observed that at the time the plaintiff made his application he was a simple contract creditor with neither judgment nor lien upon nor interest in the property sought to be charged. No statutory authority exists for entering such interlocutory judgment and no common-law principle has been suggested, and there is none that we are aware of, that will sustain it. The learned judge refers in his opinion to three comparatively late common pleas cases in which similar action was taken, but these contain no intimation of the source of the extraordinary power exercised. While we entertain the highest respect for the courts that made those orders we cannot regard them as binding precedents. No' other precedents have been cited and we have found none in the course of our investigation. A rule of procedure which permits a plaintiff before his claim has been definitely established by due process of law and who has no lien upon or interest in the defendant’s property to thus incumber and thereby interfere with the free alienation of the same without even giving security or notice to the defendant would be contrary to well-settled common-law principles and is not established by authoritative precedent. We are constrained to hold, therefore, that the judgment was unauthorized.

It is claimed that no appeal lies from such a judgment or the refusal to strike off the same. But sec. 1 of the Act of May 20, 1891, P. L. 101, provides that in all cases of application for the opening, vacating and strildng off of “judgments of any kind, whether entered by amicable confession, upon warrant of attorney or otherwise” the party aggrieved by the decision may appeal, and such cause shall thereupon be heard, reviewed and decided upon the appeal in like manner as appeals from final decrees. The language of this section is broad enpugh to include the appeal in question, and we think it is clearly within the true intent and meaning of the statute.

The order is reversed and the cautionary judgment entered on May 27, 1909, is struck off, at the costs of the plaintiff.


text:
    Houser v. Kime, Appellant.

      Justice of the peace — Certiorari—Appeals—Jurisdiction—Records— Depositions.

    No appeal lies from an order of the Common Pleas affirming the judgment of a justice of the peace on certiorari, where the record proper shows that the justice had jurisdiction of the parties and the cause of action, under the Act of March 20, 1810, P. L. 208.
    Depositions taken to show want of jurisdiction of the justice, are not a part of the record.
    Argued March 9, 1910.
    Appeal, No. 20, March T., 1901, by defendant, from judgment of C. P. Lackawanna Co., Jan. T., 1909, No. 387, affirming judgment of justice of the peace in case of E. B. Houser v. W. H. Kime.
    Before Rice, P. J., Henderson, Orlady, Head,. Beayer and Porter, JJ.
    Appeal quashed.
    Certiorari to justice of the peace.
    The opinion of the Superior Court states the case.

      Error assigned was the judgment of the common pleas

      John F. Murphy, for appellant.

      John R. Edwards, for appellee.
    April 11, 1910:
   Per Curiam,

The transcript of the justice of the peace and his return to the suggestion of diminution of record show that the action was assumpsit “ to recover 15.00 due from defendant to plaintiff under promise to pay for window broken on plaintiff’s premises.” The-depositions submitted to the court below, ostensibly, to show want of jurisdiction in the justice of the peace, are no part of the record brought up with this appeal: Crumley v. Crescent Coal Co., 13 Pa. Superior Ct. 231; Wyatt v. Szymanski, 38 Pa. Superior Ct. 525. As-the record proper shows that the justice had jurisdiction of the parties and the cause of action, under the Act of March 20, 1810, P. L. 208, 5 Sm. L. 161, there is no room for argument that the provision of sec. 22 of the same act relative to the finality of the judgment of the common pleas upon certiorari to a justice of the peace in such a case does not apply.

The appeal is quashed.