author: Crumrine, P. J.,

text:
    Lilley’s Estate.

      Spriggs, Marker «fe Rial, for appellant; Brownlee & Brownlee, for appellee.
    Dec. 17, 1927.
   Crumrine, P. J.,

This is an appeal from the decision of the register of wills in refusing to admit to probate as the will of John Lilley a certain paper writing in the form of a letter, a copy of which is as follows:

“R. D. “Charleroi Feb. 9, 25.

“George I was. verry sorry to hear of Ruths haveing to go through an operration. Yet if it sueceful and she mends from it, it may be allright, but it makes me think of her Mother, George.

“Please drop me a line as to her condition you tell her fore me she must pull out of this. I want to thak you both for what you have done for me. and if the God’s are with me in the way of a good will I intend to fix things with all the heirs. Two differet men of diffirent companies saw me to day about leasing One of them said they would start in a month.

“Before anything is done I wunt you by appointment to meet who ever we decide on, here or in town to present If they mean business and I think they do. I will let you no. just finished letter to Ellis Lilley. about leasing, aliso one to Will R. Can easily get one Eight, look things up George for you and Ruth & family are to benifit from this. As Stella and I talked you folks were to have this place when we were through.

“The first truck of a string of tools, was unloaded at top of hill on the John Snider farm to day, the same company that brought in the big well North West. I think I showed you the derrick, the best in the field. Decmber paid over $15,000 to stockholders.

“I am well, eat like a pig. if not raining in morning start work on road

“John Lilley”

The proponents claim that the words "As Stella and I talked you folks were to have this place when we were through” are testamentary in character and constitute a legal devise of the property in which Mr. Lilley lived.

Counsel for the proponents have argued very ably for their contention, and I can agree with practically all of their conclusions, both of law and fact, except the main and essential one, to wit, that this paper is testamentary in character.

It is undoubtedly true that no set form of words is necessary to constitute a valid will and that, if testamentary in character, the most informal expression of testamentary intent, if signed by the testator, is sufficient.

It is conceded, too, that the word “through,” in the expression “when we were through,” refers to the testator’s death, and the expression should be construed “when we were dead.” Clearly there was no attempt to make a gift in preesenti — but neither was there an intention to make a devise.

The letter shows very clearly what was in Mr. Lilley’s mind. He was very much interested in the possibility of getting a gas well on his property. He had been approached by two different men who wanted to lease. He dwells on the size of a well just brought in on the John Snider farm, and tells how much one well in the neighborhood has already paid. He says that if he gets a good well he intends to “fix things with all the heirs.”

Now, why does he write the letter to Mr. Denny? Clearly he wants him to assist in transacting the business of leasing the land. An appointment is to be made for Mr. Denny “to meet who ever we deeide on” as the proper person to lease to. He insists that the matter is of sufficient importance to earn Mr. Denny’s attention — “look things up George for you and Ruth & family are to benifit from this.” Then follows immediately the clause in question — “As Stella and I talked you folks were to have this place when we were through.”

Clearly, Mr. Lilley intended — at least when the letter was written — that Mr. Denny and his family were to have the “place” at his death — but the trouble with proponents’ contention is that there is nothing to show that he intended the letter to operate as a will.

Both of these conclusions are established by the testimony of A. C. Iseman. He says Mr. Lilley told him that he had written Mrs. Denny telling her she was “to have the place when [he] was through with it.” But he then added that “he was going to Greensburg to have a will made to that effect.”

I have not the slightest doubt but that if Mr. Lilley had gotten to make his will he would have left this property to Mrs. Denny or her family — but he did not get this done. And I am just as confident that he never thought that this letter of itself constituted a will or would operate to pass title to the property in question without anything more.

Counsel for the proponents in a very able and exhaustive brief cite many cases standing for the proposition that no set form of words is necessary to constitute a valid testamentary disposition of property, and several where the paper held admissible to probate was in form a letter, but in all of these cases where the writing was held to be a will the animus testandi was clear.

So in Knox’s Estate, 131 Pa. 220, very frequently cited in this line of cases, the paper, while not having the formal characteristics of a will, made a complete and detailed disposition of the estate, and even provided for the lettering on the tombstone. The only real question in dispute was the sufficiency of the signature.

In Scott’s Estate, 147 Pa. 89, the decedent had written a letter to his lawyer outlining the contents of a will which he directed to be drawn. After the letter was written and signed, however, the decedent said to his son, “that is as good a will as can be drawn; if anything happens to me, have that probated.” The necessary testamentary intent was established by parol testimony. The Supreme Court said that the letter as written was “dangerously near” a will, but even here, where the contents of the proposed will were set out in detail, even to the naming of executors, the vital element — testamentary intent — still had to be supplied. It was not a will because it was a complete, signed statement of the testator’s’ intentions, but because he adopted such statement as his will.

The paper in Gaston’s Estate, 188 Pa. 374, while illiterately drawn, shows clearly on its face that it was intended to operate as a will, and the Supreme Court so held.

In Davis’s Estate, 275 Pa. 126, the decedent had written a letter to a friend asking that at his death two enclosed certificates of deposit be delivered to two named beneficiaries. This writing was held to be testamentary in character, and so entitled to probate. It was a definite disposition of his property to take effect at his death.

Probably the case leaning farthest toward the proponents’ position is that of Kimmel’s Estate, 278 Pa. 435. On the day he died, the decedent wrote a letter to his sons. He discusses the weather, the best way in which to cure meat, the family’s health, the removal of some livestock, etc., and then closes with these words: “I have some very valuable papers I want you to keep fore me so if enny thing happens all the scoek money in the 3 Bank liberty Iones Post office stamps and my home on Horner St goes to George Dari & Irvin Kepp this letter lock it up it may help you out. . . .” The key to the decision that this letter was testamentary and should be probated as a will is in the words “Kepp this letter lock it up it may help you out.” The court construed these words as an expression of the testator’s intention that the letter itself should operate as a will and carry out the desire of the testator just expressed. Mr. Justice Sadler says: “It is difficult to understand how the decedent, probably expecting an early demise — as appears by the letter itself, and the fact of his sickness and inability to work, during the last three days of the first or second week preceding — could have possibly meant anything else than a testamentary gift when he said ‘so if enny thing happens [the property specified] goes to George Dari and Irvin;’ and why, if this was not intended to be effective in and of itself, he should have sent it to two of the distributees named in it, telling them to ‘Kepp this letter lock it up it may help you out.’ ”

To repeat, in the letter before us, Mr. Lilley’s intention as to what should become of the property is clearly expressed, but there is nothing to show that he intended the letter of itself to work such a disposition or believed that it had done so. This fact distinguishes the present case from any of those cited.

We should perhaps mention another line of eases referred to by the proponents. In Turner v. Scott, 51 Pa. 126, Mr. Chief Justice Woodward says: “The doctrine of the cases is, that whatever the form of the instrument, if it vest no present interest but only appoints what is to be done after the death of the maker, it is a testamentary disposition.” It is in connection with this principle that counsel emphasize the importance of the word “through” as indicating that the property was not to pass to the Dennys till after the death of the decedent. Other cases distinguishing between words intended immediately to transfer property and those where it is not to take effect till after death are: Tozer v. Jackson, 164 Pa. 373; Coulter v. Shelmadine, 204 Pa. 120; Wolfe’s Estate, 284 Pa. 169; Harrison’s Estate, 196 Pa. 576.

It is, of course, true that no paper can be testamentary in character unless it be ambulatory in character and take effect as to disposition only after the death of the maker. But it does not follow that every paper which expresses an intention of what is to be done with the writer’s property after his death is for that reason legally testamentary. The paper itself must first disclose of itself that it was intended to operate as a will, or that intention must be supplied by parol testimony, as in Scott’s Estate, supra. In no event can there be a valid will without an animus testcmdi. The old rule of Stein v. North, 3 Yeates, 324, enunciated in 1802, has never been departed from. It is as follows: “Sed per curiam. Clearly this letter cannot operate as a will. Though no particular form of words is necessary to give validity to a will, yet all the books agree that the animus testandi is an indispensable ingredient. There must be an advised purpose to make a present disposition of the party’s estate. Here it is but the signification of an intention to do a future act, and so not the testament itself, which must contain a present and perfect consent: Swinb. 8, 9.”

For the reasons stated above, we feel that the register of wills committed no error in refusing to admit this paper to probate.

And now, Dec. 17, 1927, this cause came on to be heard on appeal from the decision of the register of wills, testimony was taken, and the cause argued at length; wherefore, it is ordered and decreed that said appeal be and is hereby dismissed, at the costs of the proponents.

Prom Harry D. Hamilton, Washington, Pa.


source: Caselaw Access Project

author: Hudson, P. J.,

license: Public Domain

text:
    Felty v. Felty.

      Umbel, Robinson & McKean, for petitioner; F. E. Younkin, for defendant.
    March 5, 1928.
   Hudson, P. J.,

This case comes before us on a motion by a subsequent judgment creditor to strike from the record the judgment entered at the above number and term and the revivals thereof, for the reason that the plaintiff had been dead for more than a year at the time of the entry of the original judgment.

There was no testimony taken, but from the pleadings we gather the following facts:

(a) That a promissory note for $4800, under seal, with power to confess judgment and given for a valuable consideration, was executed by Christian Felty, defendant, to Anna E. Felty, his wife, on Jan. 1, 1904, and delivered to her on March 1, 1904, and at this time she requested him to file said judgment note of record, which he neglected to do.

(b) That Anna E. Felty died Sept. 27, 1910, intestate, leaving to survive her as her heirs-at-law, Christian Felty and the following-named children: Guy Felty, G. P. Felty and Hazel Felty.

(c) That the said judgment note was produced at the prothonotary’s office on April 6, 1912, by the defendant, and judgment entered thereon by the prothonotary at the above number and term in favor of Anna E. Felty, plaintiff, and against Christian Felty, defendant, for the sum of $4800, with interest thereon from Jan. 1,1904.

(d) That, on June 20, 1916, letters of administration on the estate of Anna E. Felty were granted to Charles D. Baer, an attorney of Connellsville, Pennsylvania. In his application for letters, no mention was made of the note. Before the letters were granted, a citation was issued and served upon Christian Felty, husband, to come and take out letters or show cause why the same should not issue to Charles D. Baer.

(e) That, on April 6, 1918, an amicable scire facias sur judgment, signed by the defendant, was filed by him in the prothonotary’s office, at No. 240, June Term, 1918, for the purpose of reviving and continuing the lien of the original judgment; and, on the same day, the prothonotary revived said judgment in favor of Anna E. Felty, plaintiff, and against the defendant, Christian Felty.

(f) That, on March 20, 1922, Christian E. Felty, defendant, for a valuable consideration, executed and delivered to the Union Acceptance Company a certain promissory note, under seal, with power to confess judgment, for $10,000, and, on March 22, 1922, the said judgment note was filed of record in the prothonotary’s office and judgment entered thereon at No. 175, June Term, 1922.

(g) That, on April 7, 1922, an amicable scire facias sur judgment, signed by the defendant, was again filed by him at No. 238, June Term, 1923, for the purpose of reviving and continuing the lien of the judgment entered at No. 240, June Term, 1918; and, on the same day, the prothonotary revived said judgment in favor of Anna E. Felty, plaintiff, and against Christian Felty, defendant.

On Dec. 22, 1924, the Union Acceptance Company, judgment creditor, presented its petition to court, and a rule was granted upon Charles D. Baer, administrator of Anna E. Felty, deceased, Christian Felty, defendant, and Guy Felty et al., to show cause why the original judgment and the revivals thereof should not be stricken from the record.

The petitioner claims that the judgment should be stricken from the record for the reason that at the time of its entry in 1912, Anna E. Felty, plaintiff, had been dead for more than a year, and for this reason it was a nullity-void ab initio.

The defendant contends that the only ground upon which the petitioner can attack the judgment is that of fraud, and that there is no allegation of fraud.

Which of these two positions is correct?

The Act of Assembly of Feb. 24, 1806, § 28, 4 Sm. Laws, 278, provides: “It shall be the duty of the prothonotary of any court of record within this Commonwealth, on the application of any person being the original holder, or assignee of such holder, of a note ... in which judgment is confessed, or containing a warrant for any attorney-at-law or other person to confess judgment, to enter judgment against the person or persons , who executed the same.”

It is well-settled law of this State that a judgment cannot be entered against a defendant who is dead. In Lanning v. Pawson, 38 Pa. 480, the court struck off the judgment that had been entered on a warrant of attorney, because of the previous death of the defendant. Lowrie, C. J., said: “It was manifestly very proper to allow this issue, and, of course, to strike off the judgment that had been entered on the warrant of attorney, on the fact being found that the defendant was dead before it was entered.”

“If the court has jurisdiction of the parties and the subject-matter, and the defendant, after having appeared and pleaded, dies, the judgment subsequently entered against him will, at most, be voidable, and may, in some cases, be made entirely valid by retroactive entry. But it is essential that jurisdiction should have attached during the defendant’s life; and if the action is commenced against one already dead, the judgment will be absolutely void for want of jurisdiction:” 1 Black on Judgments (2nd ed.), § 203, page 299.

“Although there are decisions to the effect that where the plaintiff is dead at the time of commencing the suit, the judgment rendered therein is merely erroneous and not void, the sounder view and the one supported apparently by the weight of authority is that to invest a judgment for or against a deceased person with any validity, it is absolutely essential that jurisdiction should have attached during the lifetime of the plaintiff or defendant, and that if an action is commenced in favor of or against one already dead, the judgment rendered therein is absolutely null and void for want of jurisdiction, and the fact of death may be shoum on either direct or collateral attack. Any party in interest can raise the question, since no judicial record will be sufficient to create an estoppel preventing production of proof of such death. In accordance with this rule, it has been held that a decree based on a summons against a dead man, who is named as the owner of property, the sale of which is sought for an assessment for an improvement, is of no validity whatever, no matter how the summons was posted or published, although such notice, in case of unknown owners, might be sufficient:” 15 Ruling Case Law, § 59, page 619.

It seems to be the law of this State that when the court has acquired the jurisdiction of the parties, judgment entered for or against the parties is not void, but voidable, depending upon the circumstances of that particular case: Carr v. Townsend’s Executors, 63 Pa. 202; Warder v. Tainter, 4 Watts, 270; Murray v. Weigle, 118 Pa. 159.

Can judgment be entered in favor of a plaintiff who is dead where the court has not acquired jurisdiction of the parties prior to the death of the plaintiff? We are of the opinion that it cannot, and that such judgment is a nullity — absolutely void.

In Ingersoll v. Dyott, 1 Miles, 245, judgment was entered on a bond without consent of the obligees or plaintiffs; upon motion of the plaintiffs, the judgment was stricken from the record. The court said: “It distinctly appears that the entry here of what purported to be a judgment was made by the prothonotary on the application of the individual who executed the warrant of attorney, and not on the application of any party who, in the sense of the law, was the holder of the instrument. There was, then, no judgment in conformity with or founded upon the act of, assembly. It also distinctly appears that the persons stated to be the plaintiffs never authorized the use which has been made of their names. ... In consequence of a remark of the defendant’s counsel, it may be proper to observe that the authority of the court to strike out the judgment cannot be questioned. In Kellogg v. Krauser, 14 Sergeant & Rawle, 143 Chief Justice Tilghman asserts the power of the court, under certain circumstances, to order a judgment to be erased from their record, and says that it is not now a matter of doubt whether the court can entertain a motion to strike out or open a judgment entered on a warrant of attorney. The duty of the court is equally obvious. The judgment was irregularly entered, and nothing has occurred since which could possibly give it force and validity. The court are bound to set it aside.”

In Wentz v. Bealor, 14 Pa. C. C. Reps. 337-339, Lyons, P. J., said:

“And where a judgment was entered against defendant by virtue of a' warrant of attorney, and writ of ft. fa. issued thereon and defendant’s personal property levied on, on petition of the administrator of defendant, representing that defendant had died before the entry of judgment, the court stayed the fi. fa. and directed an issue to try the facts as to the death of the defendant previous to the entry of judgment. The jury found that the defendant had died previous to entry of the judgment, and the judgment was stricken from the record: Lanning v. Pawson, 38 Pa. 480. A judgment confessed by the defendant in a pending suit after the death of the plaintiff and before substitution of his personal representatives must be set aside on their application made for that purpose: Finney v. Ferguson, 3 W. & S. 413.

“. . . The above authorities, I think, clearly show that those judgments were erroneously entered after the death of the plaintiff, and the defendants are entitled to have them stricken from the record.”

In Stevenson v. Virtue, 21 Pa. C. C. Reps. 229, 231, McIlvane, P. J., said:

“A judgment admittedly entered against a dead man because he did not appear is a nullity. As said by the court in Railroad Co. v. Hamilton, 127 Pa. 1, it is something on the record which has no business there, which confers no rights and imposes no obligations.

“It is true, as stated by counsel, that the general rule is that a motion to strike off a judgment must be on the ground of irregularity appearing on the face of the record, but this rule, like all others, has its exceptions. And the case at bar presents one of them. Here the plaintiff admits, in his answer to the rule served on him, that the defendant died nearly two months before the expiration of the time given him by the act of assembly to appear. Such an admission is equal to an answer that the judgment is void.”

In Clarion M. & P. R. Co. v. Hamilton, 127 Pa. 1, the court said: “While an erroneous or voidable judgment cannot be affected by at writ of error, unless purchased within the statutory period, a void judgment is no judgment at all. It is something on the record which has no business there, which confers no rights and imposes no obligations. At the same time, it may be a source of annoyance to some one; it may becloud a title or injure credit, and the person who is injuriously affected by it has a right to have it stricken from the record.”

In the instant-case, judgment was twice revived by the defendant after letters of administration had been granted upon the estate of Anna E. Felty, deceased. The only way by which the judgment could have been regularly revived was by the administrator, the legal representative of the plaintiff, as provided by act of assembly.

In Dietrich’s Appeal, 107 Pa. 179, the court said: “It was said, however, that the matters complained of are, at most, mere irregularities which no one but the defendant can object to, and that, under the authority of Dougherty’s Estate, 9 W. & S. 189, the revival is good as against a stranger to the judgment. This would be so if the irregularities were mere matters of form. But they are not; they are matters of substance. The judgments against the defendant upon the writs of scire facias are good against him, but the lien thereon dates only from the time of their entry; the continuity is broken, and the lien of the original judgment is lost. It needs no argument to show that, as against subsequent judgment creditors, a judgment must be revived in substantial conformity to the act of assembly. If not so revived, it is not revived at all; it drops out of the list of liens and the next judgment takes its place: Hauer’s Appeal, 5 W. & S. 473; Dickerson and Haven’s Appeal, 7 Barr, 255, and Thompson’s Appeal, 57 Pa. 175, are not in conflict with this- view. The doctrine that a judgment cannot be attacked collaterally is not disputed.. This is a question of lien, and I know of no case which holds that, upon distribution, a subsequent judgment creditor may not show that a prior judgment has lost its lien by a failure to revive in substantial conformity to the act of assembly.”

As sustaining his contention that the only ground upon which the petitioner can attack the judgment is that of fraud, the defendant cites Hauer’s Appeal, 5 Watts & Sergeant, 473; Lowber and Wilmer’s Appeal, 8 Watts & Sergeant, 387; Roemer v. Denig, 18 Pa. 482.

In Hauer's Appeal, the court said (page 474) : “A creditor, as I have said, may abate a fraudulent judgment for a pretended debt; but he cannot abate an erroneous one for a bona fide debt to gain priority by it, for he was entitled to no priority at the date of the judgment, and its erroneousness was no wrong to him.”

■In Lowber and Wilmer’s Appeal, swpra, the court said (page 390) : “But where the objection extends no further than that the judgment upon which the execution has been issued has been erroneously entered or obtained, or the execution erroneously issued thereon, no other person than the defendant therein or his legal representatives will be permitted to make it.”

In Roemer v. Denig, supra, the court said (page 484) : “A subsequent judgment creditor may impeach a prior judgment upon the ground that it was given without consideration to defraud creditors; but he has nothing to do with mere errors and irregularities in the proceedings.”

In our opinion, these eases only hold that a subsequent judgment creditor cannot attack a prior judgment which has been irregularly or erroneously entered. But where a judgment has been entered which, upon its face or from the pleadings, is void, it can be attacked by a subsequent judgment creditor.

In the instant case, the plaintiff, Anna E. Felty, had been dead for seventeen months at the time of the entry of the original judgment. There was no such a person in existence at the time. Such a judgment is no judgment at all. It is nothing. The prothonotary had no right to enter such a paper on the record, and by entering it, no obligations were imposed upon any one and no rights or benefits were conferred upon any one. It was not a voidable judgment irregularly or erroneously entered, but a void one. The judgment was twice revived, not by the administrator, the legal representative of Anna E. Felty, deceased, but by the defendant in behalf of Anna E. Felty, plaintiff. This certainly could not be done.

We are of the opinion that the judgments and the revivals thereof are void and must be stricken from the record.

Order. — And now, March 5, 1928, after argument and consideration thereof, for the reasons above given, the judgment entered at the above number and term, and the revivals thereof entered at No. 240, June Term, 1918, and at No. 238, June Term, 1923, are stricken from the record.

From Luke H. Frasher, Uniontown, Pa.


author: Hicks, J.,

text:
    Jones v. Lehigh Valley Coal Company.

      Roger Dever, for plaintiff; D. W. Kaercher, for defendant.
    July 23, 1928.
   Hicks, J.,

The claimant is the widow of William Jones. Mr. Jones, forty-seven years of age, was employed as a miner by the Lehigh Valley Coal Company at its Buck Mountain operation. On the morning of Oct. 27, 1927, the claimant’s husband went to his usual place of employment and, while there engaged in the performance of his usual duties, died. On this particular morning, the uncontradicted evidence in the case showed that he was apparently well when he left home, good and healthy, apparent good health, jolly, cutting up, declaring he felt good and that he “never doctored with anybody.” Up until he lifted a rock, his apparent condition of health was good. He and his buddy were loading a second car of rock and the decedent was handling a big piece of rock, which was about two feet square and four inches- thick, and right after that he complained of pain in his right side; he was pale and getting weaker; after picking up the rock, he complained, “getter weaker,” kept holding himself, his side, and he used to rub his hand over his right side after he got the pain. Thereafter, he and his buddy “put up two legs. We set up the two legs and I myself was doing that part; he wasn’t able to do it; the only reason he stayed at work was because it was pay-day, and if he would leave he would only have to walk all the way back to the colliery; so he stayed there and he helped around a little, but he was getting weaker all the time.” He was cutting a prop with a crosscut saw when he dropped over and died.

The basic finding is the third finding of the referee, reading as follows: “We find the claimant had myocarditis, and when he lifted the rock thus put an extra strain on his heart and caused it to dilate acutely, and this caused his death. In other words, the claimant died of acute dilatation of the heart, which was the result of strain occasioned when he lifted the rock; in other words, the heavy lift was the contributory cause of the claimant’s decedent’s death.”

Compensation was awarded to the claimant widow, which was aifirmed by the Workmen’s Compensation Board.

The question decisive of this appeal is whether or not there is competent evidence sufficient to support the finding of an accidental injury. Dr. R. D. Spencer, a pathologist, was called and on direct examination-in-chief testified as follows: “Q. What would you say was the cause of death of this man? A. The man died a heart death, an acute dilatation of his heart. Q. Has all the earmarks of a heart death rather than a brain death? A. Yes, sir. Q. You heard the witness testify that about ten o’clock that day he lifted a rock, and you heard him describe it? A. Yes, sir. Q. You heard him describe the heavy lift and immediately took pain over the right side and continued to have that pain until he dropped over while cutting some timber; whether or not, in your opinion, that lifting of that rock played a very material contributory part in contributing to this man’s death? A. Yes, sir; I would say it played a very important part in contributing to his death. Q. In other words, that was the lift that did the damage? A. In my opinion, yes.” On cross-examination appears the following: “Q. You are not prepared to say, and do not say, as I take it, that this seizure or what caused his death actually came from either the lifting of this small stone, two feet square and about four inches thick, which couldn’t have been a very great weight, and the sawing of one prop and part of another, that it actually came from that and no other cause? A. He might have had a chronic myocarditis, and- lifting a weight like this produced an acute dilatation in a heart of that type. • As a rule, a person has got to have some trouble with their heart in order to have an acute dilatation. Q. So I gather from your testimony you are not prepared to say, and do not say, his death was actually caused by the lifting of the rock or sawing of the timber and no other cause? A. My view would be the lifting of the rock produced an acute dilatation and the acute dilatation caused his death.” The positive declaration of the expert that the lifting of the rock produced an acute dilatation which caused his death meets the test for this kind of testimony as specified in Funk v. Sheldon Axle and Spring Co., 270 Pa. 476, 479, and cases in its train. Dr. Spencer testified, both in direct and in cross-examination, that, in “his view,” the death of the decedent came as the result of dilatation of the heart, caused by the lifting of the rock, and this is sufficiently positive and definite to meet the requirements of the law with respect to expert testimony under circumstances like these: McCrosson v. Phila. Rapid Transit Co., 283 Pa. 492, 495. The evidence of the expert, coupled with the apparent good health of the decedent, and his complaint of injury immediately after he lifted the rock, and the immediate change thereafter in his condition to continued complaint of pain and his growing weaker, was competent and ample to sustain the conclusion reached by both the referee and the Compensation Board that cardiac collapse resulted in the claimant’s husband, following overlifting and overstraining while working in the defendant’s mine: Tracey v. Phila. & Reading Coal and Iron Co., 270 Pa. 65.

The contention of the defendant is that the sudden death of an employee at work, which calls for no unusual physical strain or which is unaccompanied by any unusual circumstances proven to be injurious to the employee, raises no presumption of an accident. To which we readily consent, but with its application to the circumstances of this case we do not agree. Of course, if the disability was hastened by the usual work, that would not constitute an accident. “To constitute an accident there must be some untoward occurrence aside from the usual course of events:” Gausman v. Pearson Co., 284 Pa. 348, 354. Disability, hastened by the usual and ordinary work, cannot be treated as accidental; neither can death or disability overtaking an employee in the course of his employment and resulting from a natural cause. If it could, it would render the employer an insurer .of the life and health of the employee: Gausman v. Pearson Co., supra. But death resulting from a strain upon the heart, caused by overlifting, is an accident: Tracey v. Phila. & Reading Coal and Iron Co., supra. An extra strain upon the heart may cause death, and it is the positive testimony in this case that the lifting of this particular rock caused dilatation of the heart, which was followed by death: Watkins v. Pittsburgh Coal Co., 278 Pa. 463, 466. While the sudden death of an employee while doing work, which calls for no unusual physical strain, raises no presumption of an accident (Lesko v. Lehigh Valley Coal Co., 270 Pa. 15), this rule cannot be invoked where duty requires performance of an act causing a fatal strain to a vital organ, as in this case.

In the case of Gausman v. Pearson Co., supra, cited by the defendant, the testimony of the experts did not measure up to the legal requirements of proof, and there was no competent testimony that the claimant suffered a heat exhaustion or that such was the superinducing cause of the apoplexy from which he died. In that ease the court declared: “Where an injury may be the result of one of two or more causes, for only one of which defendant is liable, the burden is on the plaintiff to individuate that one as the proximate cause of his damage; otherwise, there can be no recovery; . . . furthermore, the burden of proof is not met by the testimony of the witness when so conflicting as to render any inference therefrom a mere guess.” That case is not this one and does not control it.

The defendant also relies upon the case of Watkins v. Pittsburgh Coal Co,, 278 Pa. 463. In this case the claimant met his death through a strain of the heart, caused by climbing a stairway in the course of his employment, which at other times the deceased had climbed without fatal result, and the award of the referee, sustained by the Workmen’s Compensation Board and the lower court, was affirmed by the Supreme Court. In affirming the. award, Mr. Justice Walling, on pages 465 and 466, declared: “Assuming the accuracy of the doctor’s opinion, the finding of the referee is warranted, for we have held that death resulting from a strain upon the heart, caused by over-lifting, is an accident (Tracey v. Phila. & Reading Coal and Iron Co., 270 Pa. 65), and it is no less so when caused by overexertion in climbing eighty feet up a stairway. That an extra strain upon the heart may cause death is undoubted, and the fact that at other times the deceased had climbed the stairs uninjured is not conclusive that he did so on this occasion. The award here in question finds support in other decisions of this court, for we have held that death resulting from the rupture of a blood vessel by an extra effort in vomiting (Clark v. Lehigh Valley Coal Co., 264 Pa. 529), or from heat prostration (Lane v. Horn & Hardart Baking Co., 261 Pa. 329), or from dilatation of the heart, caused by an anaesthetic (Hornetz v. Phila. & Reading Coal and Iron Co., 277 Pa. 40), or from pneumonia, caused by lifting a piano (Wolford v. Geisel M. & S. Co., 262 Pa. 454), is an accident within the meaning of the workmen’s compensation statutes.” In the opinion of the court, this case does not support the contention of the defendant, but rather supports the contention of the claimant.

No testimony, medical or otherwise, was offered by the defendant, and the only-expert called in this case testified on behalf of the claimant, who testified that the cause of the death of the husband of the claimant was acute myocarditis, commonly called dilatation of the heart, which frequently results from overexertion. Prior to the lifting of the rock, the deceased was in good health, and immediately thereafter he complained of pains in his side, grew pale and sick and was no longer able to do efficient work, although he did saw a piece of timber and fell dead while engaged in his weakened condition from the lifting of the rock in cutting another piece of timber with a crosscut saw. The opinion of the expert was that his death resulted from acute dilatation of the heart, caused by the lifting of the rock, and this met the requirement of Vorbnoff v. Mesta Machine Co. et al., 286 Pa. 199. “That death was caused by overexertion in the course of employment is an accident compensable under the workmen’s compensation statutes is well settled. See Samoskie v. Phila. & Reading Coal and Iron Co., 280 Pa. 203; Watkins v. Pittsburgh Coal Co., 278 Pa. 463; Hornetz v. Phila. & Reading Coal and Iron Co., 277 Pa. 40; Tracey v. Phila. & Reading Coal and Iron Co., 270 Pa. 65; Yodis v. Phila. & Reading Coal and Iron Co., 269 Pa. 586; Clark v. Lehigh Valley Coal Co., 264 Pa. 529; Wolford v. Geisel M. & S. Co., 262 Pa. 454; Calderwood v. Consolidated L. & S. Co., 91 Pa. Superior Ct. 189:” Skroki v. Crucible Steel Co., 292 Pa. 550, 552.

It might well be added that in the case last cited, the Gausman case, supra, was differentiated from cases of this nature as the instant case, in that in the Gausman case, relied upon by the defendant, an old man was doing light work, and it was not shown that the stroke came upon him as the result of heat, overexertion or any accident. In the instant case the award is amply sustained by the expert evidence and by the other evidence in the case.

And now, July 23, 1928, the appeal of the defendant is dismissed, the award and order of the Workmen’s Compensation Board is hereby affirmed and judgment is directed to be entered in favor of Susan Jones, claimant, and against Lehigh Valley Coal Company, defendant, in the sum of $3026.86.

Prom M. M. Burke, Shenandoah, Pa.


author: Newcomb, P. J.,

text:
    Hartford Accident and Indemnity Company v. Brooks.

      R. W. Rymer and /. K. Peck, for plaintiff; M. J. Martin, for defendant.
    Oct. 25, 1927.
   Newcomb, P. J.,

Replevin for certain railroad securities. The writ is challenged for want of a bond filed by plaintiff as required by law.

True, there was an instrument in writing intended to function as such bond. It ran in the name of plaintiff corporation, which it purported to bind for breach of its condition. This is the condition prescribed by the Replevin Act of April 19, 1901, P. L. 88.

But, instead of being executed in the name of the ostensible obligor under its corporate seal, the signatures were those of counsel, describing themselves as “attorneys for Hartford Accident & Indemnity Co.,” without any • seal whatsoever.

The question thus raised seems to be one of first impression. At least our attention has been called to no authority directly bearing upon it. But it turns upon the proper effect to be given to the language of the Act of 1901, § 1, supra, so far as it relates to plaintiff’s bond.

No question that the practice in replevin is regulated by this act. Neither is there any question that no valid writ in this form of action can issue in default of plaintiff’s bond, first executed and filed with the prothonotary as required by the terms of the act. The single question, therefore, is whether the instrument filed here conformed to that requirement.

It was not executed or signed by plaintiff corporation, whose bond it purported to recite. The signature was that of counsel. The words added to the signature are no doubt descriptive of the professional relation of counsel to their client. But that on its face didn’t serve to make it the plaintiff’s obligation, even if it had been executed under seal.

In the absence of any context to control or vary its meaning, the word “bond,” as used in the statute, must be deemed to have been used in its common-law and technical sense, in which the essential feature of a bond is the seal. The rule is general that, in the absence of a statute providing otherwise, a seal is of the essence of a bond, and no writing can have the qualities which attach to a bond without the seal of the party executing it; and in the absence of a seal, an instrument will not be construed as a sealed bond, although there is a recital in the body of the writing that the obligors have set their hands and seals thereto: - 9 Corpus Juris, § 19, page 14.

Indeed, under the common-law definition of a bond, signing is by no means essential to its validity. Sealing and delivery was the all-important thing: 9 Corpus Juris, § 17, page 13.

The conclusion is unavoidable that, (1) there is a material variance as between the recitals in this instrument and the form of its execution; (2) it is not a bond within the meaning of the statute referred to; and (3) for that reason the writ was improvidently issued.

The motion is, accordingly, allowed; the rule to show cause made absolute, and the writ quashed. Prom 'William A. Wilcox, Scranton, Pa.


author: Alessandroni, J.,

text:
    Homan v. Mackey, Mayor, et al.

      Paul Reilly, for complainant.

      James F. Ryan, Assistant City Solicitor (with him August T. Ashton, City Solicitor), for respondents.
    Aug. 15, 1928.
   Alessandroni, J.,

On Nov. 19, 1920, Theodore Homan, complainant, having concluded twenty years’ service as an employee of the City of Philadelphia on Oct. 5, 1916, filed an application for a pension under the provisions of the Act of May 20, 1915, P. L. 566, and its supplements. He was furnished an application blank by the Pension Board containing the following statement: “In addition to the above, applicant must furnish to the Board of Pensions satisfactory proof of the date of birth as stated herein.” Proof of date of birth not being deemed satisfactory by the board, the complainant was informed that additional proof would be required. Meantime, the application lay in abeyance. It was not until Feb. 18, 1927, the complainant furnished this additional proof, when he filed his own and his stepbrother’s affidavits as to his age. Having done so, he claimed that the pension was due him from Nov. 19, 1920. The board decided that the complainant had not complied with the regulations of the board as to proof of birth at the time of his original application and that he should file a new application. The effect of this resolution was to consider the original application a nullity and to eliminate any consideration of the right of the complainant to pension between Nov. 19, 1920, and the date of the resolution. It is to recover the sum so represented that this action was brought.

The case was tried before a jury, to which was left the question as to whether or not the complainant had complied with the requirements of the Pension Board. It is not surprising that the jury disagreed. Complainant and respondents have filed motions for judgment upon the whole record, presenting briefs which were not prepared in accordance with Rule 87, each conveniently assuming that the other had the laboring oar. However that may be, these motions raise several questions. One of them is whether this is a proper case for mandamus proceedings. Another is whether the Pension Act of May 20, 1915, P. L. 566, as amended by the Act of July 5, 1917, P. L. 689, entitles the complainant to the back pension, despite his failure to furnish satisfactory proof of birth with the Pension Board at the time of the original application. A third is whether complainant is entitled to pension upon the original application as filed without the additional information required by the board.

A writ of mandamus is an extraordinary remedy and is to be used only where there is a well defined and specific legal right in the petitioner for which there is no other specific- legal remedy: Com. v. Mitchell, 82 Pa. 343. There must be a specific legal right and the want of a specific legal remedy: Porter Overseers v. Jersey Shore Overseers, 82 Pa. 275. When the legal right has not been ascertained or a remedy exists sufficient to enforce the right claimed, the writ of mandamus will not be granted. It is a high prerogative writ, to be used rather as a last resort than a common mode of redress: Underwood v. Gendell, 227 Pa. 214.

In Com. v. Philadelphia, 176 Pa. 588, the court said: “Had the Board of Education at any time indicated.that there was any defense to this claim, it is clear that there could be no remedy by mandamus, but only by suit prosecuted to judgment in the ordinary course of law, but they have not done so.”

In Hester’s Case, 2 W. & S. 416, the court said: “A mandamus will not be granted where there is a specific remedy by action. To determine whether the County Commissioners are bound to pay this bill, the party has a remedy by action. He must first sue the County Commissioners and recover against them before he can apply here for a mandamus.” Accord, Com. v. Allegheny County Comm’rs, 16 S. & R. 317; Com. v. Thompson, 86 Pa. 442.

Under these cases, the complainant is not entitled to relief by mandamus, having failed to show a clearly defined legal right and the lack of an adequate remedy at law. The Pension Board makes the defense that the complainant has not filed a proper application and has not complied with the rules and regulations. The pleadings and the testimony raise questions of law as well as questions of fact. Until these questions are resolved into a clearly defined legal right of the complainant, a writ of mandamus cannot be invoked. There is an adequate remedy at law. Such an action, prosecuted to judgment against the Pension Board, would be determinative of the issues here raised. No satisfactory reason is offered by the complainant for not having had recourse to that remedy. There being neither a clearly defined legal right in the complainant nor the absence of an adequate remedy at law, the writ of mandamus must be refused.

This case, however, need not be decided on the propriety of the form of action employed. The substantive merits of the complainant’s case do not entitle him to relief. His contention that the Pension Act of 1915, as amended by the Act of 1917, entitled him to' a pension without furnishing the proofs required by the Pension Board when filing his application, or within a reasonable time thereafter, would nullify the manifest intention of the legislature of empowering the Pension Board to make such rules and regulations and to require such proofs as may be necessary for the proper administration of the fund. The proofs required are vital. The complainant’s own declaration, unsupported by corroborating evidence in the form of documents, affidavits, etc., was properly held insufficient by the board. The application was, therefore, inchoate and incomplete. It might well have been definitely refused by the board. Their authority for so doing is set forth in section 2 of the Act of 1915, which provides: “It shall be the duty of said Board ... to do such acts and make such reasonable rules in the premises as such Board may deem necessary to effectually carry into effect the provisions of this Act.” Moreover, the rules and regulations of the board, the reasonableness of which are not questioned, provide in article XII,' section 1, that applications for pensions be made on blank forms provided (by the board). Article xm, section 1, states: “Upon receipt by the Board of Pensions of an application for pension properly executed and in due form, the secretary and actuary shall proceed to an examination of the complete record of service of such applicant and submit said application to the Board of Pensions for approval or other action. Upon approval of the application, the beneficiary shall be entitled to retire from the city service.”

It clearly appears, therefore, that an applicant is not entitled to pension until the proper application has been filed and approved by the board. No such application was before the board until Feb. 18, 1927. His right, if any, under the original application did not accrue until then. An examination of the record and review of the conduct of the board discloses no abuse of their functions under the act.

And now, to wit, Aug. 15, 1928, the writ of mandamus is dismissed and judgment is entered upon the whole record in favor of the respondent and against the complainant. An exception to this action of the court is hereby noted for the complainant.


author: Martin, P. J.,

text:
    Philadelphia School District, to use, v. Metropolitan Casualty Insurance Company of New York.

      C. P. Harvey, for plaintiff; L. M. Stevens, for defendant.
    June 27, 1928.
   Martin, P. J.,

A statement of claim was filed averring that plaintiffs entered into an agreement in writing with T. H. Livezey & Company, agreeing to sell and deliver to said T. H. Livezey & Company window-cleaning belts and bolts for the school building in course of construction at 16th and Wharton Streets, in the City of Philadelphia; that they delivered the belts to T. H. Livezey & Company at the school building, that the articles were accepted by T. H. Livezey & Company and the School District of Philadelphia; and thereupon T. H. Livezey & Company became liable for the payment to plaintiff of $295.50; and although payment has been demanded, no part of the claim has been paid.

It is further averred in the statement of claim that The Metropolitan Casualty Insurance Company of New York became surety for the prompt payment of all persons and all sums of money due for labor or materials supplied in and about the school building. A copy of the bond of indemnity is attached to the statement of claim.

It is averred that plaintiffs complied with all the provisions and rules of the Board of Education and the School Code, and that they were authorized by the school district to institute this suit; and in accordance with the contract of suretyship, the Metropolitan Casualty Insurance Company of New York became liable to them for the payment of $295.50, which was refused by T. H. Livezey & Company and the Nelson-Pedley Construction Company, Inc., the principal contractor.

The bond of indemnity recites that Nelson-Pedley Construction Company entered into an agreement with the School District of Philadelphia to furnish all tools, workmen and material to do and perform all the labor required in erecting, complete and ready for use in the best and most workmanlike manner, a school edifice, according to the drawings and specifications thereof, to be located on the east side of 16th Street, between Wharton and Latona Streets. The condition of the bond is that if the said Nelson-Pedley Construction Company shall and will promptly pay or cause to be paid any and all persons and any and all sums of money which may be due for labor or materials, or both, furnished, done, performed or supplied upon, in or about the said buildings or work, provided that proof satisfactory to the secretary and business manager of the Board of Public Education shall be furnished that written notice of delivery of the material or the labor performed shall have been given to the principal or surety within ninety days thereof, and will and shall comply with all provisions of Rule ill of the Board of Public Education and the provisions of the School Code approved May 18, 1911, P. L. 309, the obligation to be null and void; otherwise to be and remain in full force and virtue.

An affidavit of defense raising questions of law was filed an behalf of the defendant. It averred that plaintiffs have no cause of action for the reasons that:

1. The statement of claim avers a contract between plaintiffs and T. H. Livezey & Company to purchase material, and avers that delivery was made to the said T. H. Livezey & Company of such material, but does not aver that Nelson-Pedley Construction Company, Inc., failed to perform its contract with T. H. Livezey & Company, the sub-contractor.

2. Unless it is averred that Nelson-Pedley Construction Company has failed to perform its contract with T. H. Livezey & Company, or other sub-contractor with which it contracted, no cause of action exists on the part of the plaintiffs on the bond on which suit is brought, inasmuch as by the averments of the statement of claim the plaintiff conveyed title to T. H. Livezey & Company and not to Nelson-Pedley Construction Company.

3. The statement of claim is insufficient because it does not aver a breach of contract by Nelson-Pedley Construction Company or a failure by NelsonPedley Construction Company to pay all persons with which it contracted for work performed or materials furnished on the building construction in question.

By the Act of May 6, 1925, P. L. 547, it is made the duty of the school district to require of the contractor employed in or about improvements a bond with sufficient surety providing for the payment of all labor and material entering into the improvement.

The condition of the bond required that Nelson-Pedley Construction Company should pay to all persons any money due for material furnished in or about the building. The statement of claim avers that the merchandise for which the claim is made was furnished, supplied and delivered upon the building, and a copy of the receipt for it is attached as an exhibit to the statement of claim; it is averred that plaintiffs have complied with the provisions of the rule of the Board of Education and the School Code; and that they were authorized by the School District of Philadelphia to institute this suit. Whether or not Nelson-Pedley Construction Company, Inc., failed to perform its contract with T. H. Livezey & Company is immaterial. It is averred in the statement of claim that the amount in suit has not been paid to plaintiffs, by whom the merchandise was furnished and supplied in and about the building. To entitle plaintiffs to recover for the merchandise furnished by them, there is no necessity for extending the bond beyond the . words used which include them as parties under its terms, providing that those furnishing labor and material used in the building are made parties to the bond. The bond is not for the sole protection of the School District of Philadelphia, but enures to the benefit of persons who furnish material in and about the construction of the school, and they are entitled to rely upon the condition of the bond providing for their payment: H. H. Robertson Co. v. Globe Indemnity Co., 77 Pa. Superior Ct. 422, 425. Plaintiffs had a right to institute this suit, although the amount of the claim may have been paid to T. H. Livezey & Company, who ordered the merchandise: Philadelphia v. Stewart, 195 Pa. 309.

And now, to wit, June 2.7, 1928, the affidavit of defense raising questions of law is not sustained. The defendant is given fifteen days to file a defense to the averments of fact in the statement of claim.


author: Taylor, Dep. Att’y-Gen.,

text:
    Investigation of Fires by State Police.
    June 18, 1928.
   Taylor, Dep. Att’y-Gen.,

This department is in receipt of your request to be advised upon the following points:

1. Whether a person called and questioned under section 4 of the Act of April 27, 1927, P. L. 450, can be prosecuted for the oifense concerning which he has been questioned.

2. Whether a person called and questioned under section 4 of the Act of April 27,1927, P. L. 450, can be prosecuted for an offense, the commission of which is admitted by that person, when such offense was not the subject of the inquiry.

The Act of April 27, 1927, P. L. 450, is entitled an act relating to fires and fire prevention, imposing duties and conferring powers upon the State police and providing for the investigation of the cause, origin and circumstances of fires, etc. Section 4 of this act provides that the State police or its assistants may at any time investigate the origin or circumstances of any fire occurring in this Commonwealth. In this investigation “the State police or its assistants shall have the power to summon witnesses and compel them to attend before them, or either of them, and to testify in relation to any matter which is by the provisions of this act a subject of inquiry and investigation . . . and shall have the power to. administer oaths and affirmations to any person appearing as a witness before them.” This section further provides that “no person shall be excused from attending before the State police or its assistants when summoned so to attend, nor, when ordered so to do, shall be excused from testifying . . . before such State police upon any investigation, proceeding or inquiry instituted under the provisions of this act upon the ground or for the reason that the testimony or the evidence, documentary or otherwise, required of him may tend to convict him of a crime or subject him to a penalty or forfeiture. . . .”

Article i, section 9, of the Constitution of Pennsylvania provides that “in all criminal prosecutions the accused hath a right to be heard by himself and his counsel ... he cannot be compelled to give evidence against himself, nor can he be deprived of his life, liberty or property, unless by the judgment of his peers or the law of the land.” Standing alone, the first paragraph of section 4 of the Act of April 27, 1927, P. L. 450, would be contrary to the Constitution, for if a man is compelled to give evidence against himself, the act of assembly requiring him to so testify must also grant him immunity from prosecution which might arise as a result of such testimony. In the present case, the entire section of this act does not violate the Constitution, for the second paragraph provides that no person compelled to testify or produce evidence against himself under the provisions of this section “shall be prosecuted or subjected to a penalty or forfeiture for or on account of any transaction, matter or thing concerning which he may have been required so to testify or produce evidence, documentary or otherwise; and no testimony so given or produced shall be received against him upon any criminal investigation or proceedings.”

Under the provisions of section 4 of this act, a person does not appear voluntarily to be questioned by the State police, but is directed under the authority of this law to so appear. The statement made by such a person is not a voluntary statement, and is not in the nature of a statement made by a person interrogated by the State police concerning other offenses than arson.

The person to be interrogated cannot ignore the summons, for to do so would be in contempt. It can matter little whether he is sworn or not sworn, although this section does not provide that he must be sworn. The statement made under the authority of this act is an involuntary one, and, therefore, this section provides that the person so compelled to testify shall be immune from prosecution. If the person interrogated had not been compelled to appear by summons and testify against himself, his statement might be considered voluntary if he was under no compulsion to talk at the time of interrogation. We must, therefore, conclude that if a person is compelled to testify or furnish evidence against himself under the provisions of section 4 of the Act of April 27, 1927, P. L. 450, he cannot be prosecuted on account of any transaction, matter or thing concerning which he may have been required so to testify.

The Act of April 27,1927, P. L. 450, provides a method of investigating and securing evidence concerning the cause, origin and circumstances of fires, and the provisions of this act relate to fires and fire prevention. Under section 4 of this act, a person shall not be prosecuted or subjected to a penalty or forfeiture for or on account of any prosecution or thing concerning which he may have been required so to testify. The testimony or evidence required concerns the cause, origin or circumstances of fires and is not testimony or evidence required for any other purpose. A person is not required under this act to furnish information or evidence concerning any offense committed by him when such offense does not concern the cause, origin or circumstances of fires. Therefore, if a person interrogated under the provisions of this act voluntarily supplies information concerning the commission of an offense not connected with the cause, origin or circumstances of fires, such information can be used against that person in any prosecution brought as a result of statements made by him. Such statements are voluntary as distinguished from involuntary statements made by a person interrogated as provided in section 4 of the Act of April 27, 1927.

Prom C. P. Addams, Harrisburg, Pa.


author: Koch, P. J.,

text:
    Prudential Insurance Co. of America v. Stanulonis et ux.

      P. H. Burke and M. M. Burke, for plaintiff.

      George M. Gerber and A. D. Knittle, for defendants.
    March 5, 1928.
   Koch, P. J.,

According to the bill, which must be taken as true for the purposes of the present questions, the defendants are husband and wife, residents of Shenandoah. They had a son by the name of John Stanulonis, who was born April 21, 1910, and died Feb. 7, 1927. He had lived with his parents. John made written application to the plaintiff on April 27, 1926, for a contract of insurance on his own life, and submitted, also in writing, declarations in lieu of a medical examination, which constitute a continuation of, and form a part of, said application in writing. The defendants in this case procured and induced John Stanulonis to make and submit said application and said declarations to the plaintiff. They encouraged and assisted him in the preparation and submission of the same, and they are the parties to whom the insurance is to be paid upon the death of the insured. Relying upon the honesty and good faith of the said John Stanulonis and his parents and upon the statements and answers in said application and declarations contained, and in consideration thereof, the plaintiff, on May 10, 1926, executed and issued to said John Stanulonis, and on his life, a twenty-payment life insurance policy for the sum of $2000. The said application and said declarations are by the terms of the insurance made a part of said policy or contract of insurance, a copy of which is attached to the bill in equity. The cause of the death of John Stanulonis was heart disease, technically, myocarditis and cardiac dilatation. On Feb. 23, 1927, the defendants submitted to the plaintiff proof of the death of John Stanulonis and demanded payment of the amount of the policy. Among the said written declarations of John Stanulonis it was represented that, at the time of making said application, April 27, 1926, he had no physical or mental defects; that he had never had a serious illness; that he was then in good health; that during the three years preceding said application he had not been attended by a physician for any physical complaint or ailment; that during the three years preceding said application he had not lost any time from work through illness, and that he had never had any heart trouble. All these representations were untrue, false and fraudulent and were made by John Stanulonis, aided and encouraged therein by his father and mother, for the purpose of cheating and defrauding the plaintiff out of the amount of the said policy, by collecting $2000 on the death of John Stanulonis from a disease that the defendants knew he had at the time the representations were made. On April 27, 1926, and for some years prior thereto, John Stanulonis had, and had had, chronic heart trouble. During three years prior to April 27, 1926, he could not, because of illness, attend the public schools where he was enrolled as a pupil. During said three years he had been treated by a physician for heart disease; he was not in good health on said date, having had a serious illness, to wit, heart disease, and had had the same for some years prior thereto, the same being a serious physical defect. And the defendants knew that John Stanulonis was suffering from heart disease at the time of making said application for insurance on his life, and that he had for some years prior thereto been under treatment of a physician for the same; and they also knew that he could not long survive with such disease. For said reasons, the plaintiff prays that the said contract be rescinded and the policy of insurance be declared null and void.

The defendants’ preliminary answer Is based upon the alleged grounds that: (a) Equity has no jurisdiction under the facts set forth in the bill of complaint, for the reason that the liability of the plaintiff had attached by the death of the insured before the filing of this bill of complaint, and (b) that, upon the facts averred, the plaintiff has a full, complete and adequate remedy at law.

It is provided in the policy that it shall be incontestable after one year from its date, except for non-payment of the premium. The date of the policy is May 10, 1926, and this suit was begun May 4, 1927, no suit having been brought by the defendants to enforce collection of the face of the policy. The death of the insured within the first year after the policy was issued did not end the right of contestability of the policy; contestability survived until it expired by its own limitation upon one year from the date of the policy: Feierman v. Eureka Life Ins. Co., 279 Pa. 507. Within that year the complainant could disavow its liability in such form as to effect a cancellation of its contract: Ibid.

Where an insured warrants the truth of the statements made in his application for a policy and untrue answers are made to questions which are material, recovery may not be had on the policy within the period of con-testability fixed by the policy: Feierman v. Eureka Life Ins. Co., 279 Pa. 507; Murphy v. Prudential Ins. Co. of America, 205 Pa. 444; Smith v. Northwestern Mutual Life Ins. Co., 196 Pa. 314; March v. Life Ins. Co., 186 Pa. 629, and Arnold v. Life Ins. Co., 20 Pa. Superior Ct. 61. We have no doubt that, if the fraud alleged in this case had been discovered during the lifetime of the insured, proceedings in equity for the cancellation of the policy would have been the proper remedy. Or if the defendants now here had brought suit upon the policy within the period of contestability, the insurance company could show the fraud in bar of the action; but, as no suit was brought within the period of contestability of the policy, it became necessary for the insurance company, within the period of contestability, to disavow its liability on the policy. “The insurer must at least disavow liability within the contestable period to be relieved — not necessarily by legal action, but by some definite step specifying the ground of complaint in such form as to effect a cancellation of the contract:” Feierman v. Eureka Life Ins. Co., 279 Pa. 507. Such an avowal has now been made by filing the bill in equity before us, and the right of the insurance company to contest the policy on the ground of fraud is preserved, so that it now has a complete and adequate remedy at law. The preliminary objection to this bill, to wit, “That upon the facts averred, the plaintiff has a full, complete and adequate remedy at law,” must be sustained. But Equity Rule 49 provides that “(1) If the only objection sustained is that the plaintiff has a full,, complete and adequate remedy at law, the bill shall not be dismissed, but shall be certified to the law side of the court for further proceedings,” and that shall be done.

And now, March 5, 1928, the preliminary objection that the plaintiff has a full, complete and adequate remedy at law is sustained and the bill is certified to the law side of the court for further proceedings, in like manner as if the defendants in this case had brought an action of assumpsit against the complainant on the insurance policy attached to the bill of complaint, the parties hereto to so' formulate their pleadings as to create a proper issue for submission to a jury, to which issue the defendants in this case shall be the plaintiffs and the plaintiff in this case shall be the defendant.


author: Groff, J.,

text:
    Zook v. Zook.

      John E. Malone, for rule; B. C. Atlee, contra.
    March 31, 1928.
   Groff, J.,

This is a rule entered at the instance of the plaintiff to show cause why judgment should not be entered in favor of the plaintiff and against the defendant for the sum of $2187.50.

The facts of the case are these: The plaintiff, on Aug. 4, 1926, owned a store building located at, and known as, Nos. 52 and 52i North Queen Street, in the City of Lancaster, and on the said day the following agreement was entered into and signed by both parties to this suit:

“August 4, 1926.

“I hereby agree to rent from C. A. B. Zook the building known as 52 & 52J N. Queen St., Lancaster, Pa., under the same terms and conditions as the J. E. Myers lease which covers the above mentioned property, at $7500.00 per year, for a period from August 15, 1926, to April 1, 1929.

“It is understood that the rent for the month of August shall be $312.50.

“This lease is to be signed and delivered not later than August 7, 1926.

“It is further understood that $937.50 covering rent for the month of August and September shall be paid at the time the lease is signed and delivered.

“Witness to both S. Kurtz Zook

“Sami C. Lentz C. A. B. Zook”

The defendant never took possession of this store. Prior to Aug. 7, 1926, the day fixed in the agreement upon which a lease was to be signed, the plaintiff tendered to the defendant a written lease in accordance with the agreement of Aug. 4, 1926, which lease the defendant refused to sign.

The plaintiff says that the agreement of Aug. 4, 1926, set out at length above, was a “lease,” and the defendant says that it was not a “lease,” but an “agreement to lease,” and had no binding effect. He further says, “I deny that the legal effect of the writing marked ‘Exhibit A’ is a lease, and I deny that the said writing amounts to a lease.”

Defendant further, in his affidavit of defense, says that the signing of the agreement above was induced by the fraudulent verbal representations of the plaintiff.

After a careful consideration of the case, we think that the latter defense is not material at the present time, unless the agreement referred to is a lease and not an agreement to lease. An examination of all the cases we have been able to find leads us to the conclusion that the question is a very close one, and we have been unable to find a decision in Pennsylvania on the exact point involved here.

It is clear to us that there was some reason for not signing the completed lease on Aug. 4th, the day the original agreement was signed, and that the delaying of the execution of the lease for four days was an indication that something more was to be done to complete the transaction than was done on Aug. 4th. Just what the true intentions of the parties were seems to us to be a question of fact. Their true intent can only be known to the parties themselves, or probably to the others present when the agreement was executed. That the parties intended the matter should stay open until the final execution of the lease would seem to be plausible from the fact that the agreement in itself specifically says: “This lease is to be signed and delivered not later than August 7, 1926.”

“The fact that the parties intend that a formal lease shall be executed may show that the preliminary written agreement is an agreement for a lease and not a lease:” Seaver Amusement Co. v. Saxe, 210 Ill. App. 289; Pittsburgh Amusement Co. v. Ferguson, 91 N. Y. Supp. 666.

And, again, we find that “Where an instrument does not contain present words of demise, and expressly provides for the execution of a further lease, it has frequently been construed as merely an agreement to lease:” Harrison v. Parmer, 76 Ala. 157; Griifin v. Knisely, 75 Ill. 411; McGrath v. Boston, 103 Mass. 369.

Whether or not the instrument relied upon by the plaintiff was intended to take effect as a lease under the terms of what is referred to as the J. E. Myers lease, and is “Exhibit B” attached to the plaintiff’s statement, is at least uncertain, and we feel that in order to arrive at a correct conclusion we should receive relevant, extrinsic evidence for the purpose of resolving the uncertainty: Campbell Coal and Coke Co. v. Pennsylvania R. R. Co., 288 Pa. 36; Simon v. Myers, 284 Pa. 3.

We fully realize that plaintiff has an action of damages on this contract, whether it is an agreement to lease or an executed lease, but since the measure of damages would differ with the nature of the contract, we feel that there should be evidence in the ease explaining just what the parties intended with regard to it: Maitland v. Wilcox, 17 Pa. 231; Wilson v. Pennsy Coal Co., 269 Pa. 127.

In looking at section 17 of the Practice Act of May 14, 1915, P. L. 483, we find this: “The plaintiff may take a rule for judgment for want of a sufficient affidavit of defense to the whole or any part of his claim, and the Court shall enter judgment or discharge the rule as justice may require.”

We believe, from the examination of all the papers filed in the case, and such reported eases as we believe are applicable, that justice requires us to dismiss this rule.

If we have made a mistake, it can be corrected on the trial of the case.

Rule discharged. From George Ross Eshleman, Lancaster, Pa.


author: Stewart, P. J.,

text:
    Mann v. Schneller et al. Odenwelder v. Schneller et al.

      H. M. Spangler, for claimants.

      William II. Schneller and Asher Seip, for defendants.
    March 5, 1928.
   Stewart, P. J.,

These are rules to open judgments of non pros. The proceedings are identical and will be considered as one. The learned counsel for the execution plaintiff states the question involved as follows: “Is not the filing of a statement of claim by the claimant in an inter-pleader proceeding within two weeks after the interpleader rule has been made absolute mandatory under the acts of assembly and rules of court?” The Interpleader Act requires the bond and claimant’s statement of title to be filed within two weeks after the sheriff’s rule for an issue shall be made absolute, and section 182 of the rules of court provides: “If the claimant fails to give bond and file statement within two weeks -after an issue is awarded, he shall be deemed to have abandoned all claim to the goods levied, and the sheriff shall proceed with the execution.” In Com. v. Beary, 9 Pa. Superior Ct. 246, Judge Porter called attention to the power of the court to adopt a rule like our rule. In fact, in interpleader proceedings such a rule was necessary. He said: “The framers of the act do not seem to have contemplated, or made provision for, a failure on the part of the claimant, to file a. statement of title. The act, however, permits the Courts of Common Pleas to make general rules governing the proceedings under the act not inconsistent with its terms.” The Supreme Court also referred to this in Barn-dollar v. Fogarty, 203 Pa. 617. A case applicable, in its principle, to the present case is Neff v. Seidman, 80 Pa. Superior Ct. 489, the syllabus of which is: “A petition to open a judgment of non pros., entered because of failure of plaintiff in sheriff’s interpleader to file a statement of claim and bond, is addressed to the sound discretion of the court, and a refusal of the same will not be reversed except upon proof of abuse of such discretion.” In that case there was a judgment of non pros, and a refusal by the court to open it, and the action of the court was affirmed. It would seem, therefore, that the present case does not fall within the class of cases where a statutory enactment is held to be mandatory, such as Wise v. Cambridge Springs Borough, 262 Pa. 139, and Bailey's Estate, 281 Pa. 392, although Rader v. Keiper, 285 Pa. 579, is an advance even on the last two decisions. However, in that case Mr. Chief Justice Moschzisker placed his decision largely upon the merits of the case. The line of cases applicable to this case is illustrated by the following cases: In Fuel City Manuf. Co. v. Waynesburg Products Corp., 268 Pa. 441, the syllabus is: “Relief will be granted from a judgment entered by default, as a result of the mistake or oversight of counsel, where application is promptly made, a reasonable explanation or excuse for the default offered and a defense shown upon the merits.” In Kantor v. Herd et al., 276 Pa. 519, there is an excellent discussion of the subject-matter by Mr. Justice Sadler. The Fuel City Manufacturing Company case has been followed in Public Ledger Co. v. Kleinman, 75 Pa. Superior Ct. 345; Noll v. Corporation of Royal Exchange Assurance, 76 Pa. Superior Ct. 510; Kulp v. Lehigh Valley Transit Co., 81 Pa. Superior Ct. 296, and Baile Co., Inc., v. Stong & Stong, 84 Pa. Superior Ct. 241. In Bleyer v. Ricker et al., 14 Northamp. Co. Repr. 67, the syllabus is: “Judgment by default may be taken when either party is in disregard of a statutory rule and where the statement provided by the Act of May 26, 1897, P. L. 95, is not filed within the two weeks’ period mentioned in the act. Judgment of non pros, may be entered by the court without a prior rule to show cause why it should not be entered, and a judgment so entered is regular and will not be stricken off. Where the court is satisfied that a judgment by default was entered against parties who assert that they have a good defense, through the neglect of counsel, which neglect was not wilful and did not cause any serious delay, the court will open the judgment upon conditions.” That was a proceeding in foreign attachment, and a judgment of non pros, was entered there for want of a statement. We examined the matter at some length, and we think that decision is in conformity with the subsequent decisions of the Supreme and Superior Courts cited above. Three elements must be considered — neglect of counsel, the merits of the case, and the willingness to conform to the requirements of the law. As to the last element, in the present case there was no delay after judgment had been entered, but there has been no offer to the court to file a statement except inferentially from the prayer of the petition. Good practice requires that a statement should be prepared and proffered to the court with the petition to open. We have carefully examined the depositions that have been taken, and, without expressing any opinion upon the merits of the case, they raise questions of fact for a jury to pass on. As to the neglect of counsel, we have examined the execution docket and the continuance docket. In the latter docket the record shows: “Statement with acceptance of service by attorney for defendant filed.” In the execution docket there was no entry of the filing of any statement, and the judgment of non pros, was properly taken on that record.

As a matter of fact, although counsel for the claimant used the back prepared for assumpsit cases, and although counsel for the execution plaintiff endorsed that paper, “Apr. 20/25 Service of within statement accepted,” nevertheless, the paper itself is as headed, an answer duly signed and sworn to by the claimant. The heading shows what it is as follows: “Answer to rule granted on March 30, 1925, returnable April 20, 1925, to show cause why an issue should not be framed to determine the ownership of goods and chattels claimed and levied upon.”

To keep the record straight, the prothonotary is directed to so endorse it and file it in its proper place as an answer, and' is also directed to strike out the entry on the continuance docket of the filing of the statement of claim on April 20, 1925. It is a relief to note that in the petition the client swore that the trouble in this case was caused “bythe mistake, accident and inadvertence of the attorney of your petitioner,” and that for one time at least the burden of lawyers’ mistakes was not put on a stenographer. However, although the affidavit was made by the client, the attorney very frankly, upon argument, admitted that the fault was his. Under the circumstances, therefore, in the exercise of our equitable discretion, we make the following order in each case:

And now, March 5, 1928, rule to open judgment of non pros, and to allow claimant to file statement will be marked by the prothonotary “absolute,” provided the claimant shall file a statement on or before two weeks from date, and shall, at the time of filing same, exhibit to the prothonotary a receipt in full for all costs incurred after May 18, 1925, to this date, caused by these proceedings to open the judgments.

From Henry D. Maxwell, Easton, Pa.


author: Brownson, P. J.,

text:
    Commonwealth v. Jones.

      John A. McGlade, for defendant.
    Jan. 9, 1928.
   Brownson, P. J.,

The defendant was indicted for operating a motor-vehicle while under the influence of intoxicating liquor. The case was tried by a jury, which rendered a verdict of acquittal, but imposed the costs upon the defendant. He now asks the court to set aside that part of the verdict relating to the costs, for the reason that he has found since the trial a witness who testifies that he was at the scene of the accident immediately after it occurred, and while the defendant was unconscious as a result thereof, and that he smelled no liquor upon defendant, but did smell liquor upon the prosecutor, who was the driver of the other ear that was in the collision. It is contended that if this testimony had been before the jury, it would probably have led to a different disposition of the costs.

If the defendant had been convicted, and this were a motion for a new trial, this after-discovered evidence would seem to be subject to the objection that testimony in contradiction of the allegation that defendant had about him the odor of liquor is merely cumulative of other testimony given at the trial for the defendant. See cases collected in 13 P. & L. Dig. Dec., 23058. And, again, it is at least questionable whether, by the exercise of reasonable diligence, it could not have been discovered before the trial. It is true that the defendant was unconscious at the time this witness came to look at the wreck; but as the defendant knew he had been unconscious for a time, common prudence would seem to suggest his making inquiries as to whether any other person had been near him during his unconsciousness, and it is not clear that he could not, by means of such inquiry, have discovered this witness. The court, however, cannot grant a new trial after a verdict of acquittal, in order that the disposition of the costs may be submitted to another jury: Com. v. Bowers, 43 Pa. C. C. Reps. 237. What the court is now asked to do is, therefore, to determine itself what disposition ought to be made of them upon all of the evidence, including the new testimony now presented. Where the question has been properly submitted to the jury at the trial, the court, in view of the fact that the statute explicitly commits this matter to the jury’s discretion, is ordinarily bound to presume that they had some good reason for their action: Baldwin v. Com., 26 Pa. 171, 172; Com. v. Lederman, 14 Lanc. Law Rev. 185; and it should interfere therewith only in a very clear case: Com. v. Chartiers Ry. Co., 28 Pa. Superior Ct. 173; Com. v. Bowers, 43 Pa. C. C. Reps. 237. The cases in which an acquitted defendant will be, and those in which he will not be, relieved of costs are collected in “The Law of Costs and Fees in Pennsylvania” (George T. Bisel Co., 1919), at pages 660 to 663. One of the decisions there cited is very much in point. A witness who was not at the trial testified thereafter that the offense charged in the indictment was committed by himself and not by the defendants, but the court held that while this new testimony “might have induced the jury to render a different verdict, or the court to grant a new trial if the defendants had been convicted, ... it cannot be made to alter the finding as to costs:” Com. v. Wagner, 1 York Leg. Record, 24.

The verdict in the present case turned upon the credibility of testimony. Evidently the defendant was acquitted because the jury did not regard the testimony as strong enough to exclude all reasonable doubt. It was within their discretionary power, under those circumstances, to impose the costs upon him: Com. v. Tilghman, 4 S. & R. 127; Com. v. Bishop, 14 Pa. C. C. Reps. 404. Whether the testimony of this new witness would have led them to exercise their discretion in a different way, we cannot say with any certainty, especially in view of the fact' that he stated, when testifying in support of the present rule, that he was not very close to the defendant at the time he referred to. But the effect of the case of Com. v. Wagner, supra, is that when the propriety of imposing costs upon a defendant does not depend upon the legal effect of certain undisputed facts (as in Com. v. Gabby, 5 Dist. R. 159), but is a matter for the exercise of discretionary judgment by the jury on the basis of the view they take of the evidence, it is not the province of the court to retry the question on new evidence, and, assuming the place of the jury, exercise its own discretion thereon. Under the authorities which have been cited, and in view of all that has been' said above, we do not feel justified in setting this finding aside.

And now, Jan. 9, 1928, the rule is discharged.

From Harry D. Hamilton, Washington, Pa.


text:
    Lappe v. Lappe.

      A. M. Neeper, for plaintiff.
   Four out of five defendants consented to a partition proceeding and were willing that the real estate in question should be divided as prayed for. But one of the defendants in the case persistently and purposely avoided service of the bill of complaint. She refused to receive from the mail-carriers registered letters containing a copy of the bill of complaint and practically all mail for some time. She secreted herself in her dwelling-house and refused to answer the door bells and knocks upon the front and rear doors seeking admission or having for their object the bringing of the defendant to the door so that she could be served. The question came on how to obtain service and bring that defendant into court under the circumstances. After a search extending over two or three months at intervals, nothing was found in equity practice that would be a guide to get a service of a sufficient character to get the defendant into court and obtain jurisdiction over her interests in the property to be partitioned.

It was then that Equity Rule 27 as recently promulgated by the Supreme Court of Pennsylvania was tried to solve the difficulty. This rule provides: “And if no method of service is provided thereby, then, if this is allowable by chancery practice, in such a way as may be directed by the court. The court, or a law judge thereof, may direct how service shall be made in special cases.”

A petition was presented to court, setting forth the difficulties encountered in the attempted service of the bill. Observation showed that the defendant was at home, and over the telephone she announced that she would prevent service of the bill until terms dictated by herself were complied with. The court entered the following order:

Order of court.

And now, March 19, 1928, the foregoing petition presented in open court, and upon consideration thereof and the affidavits attached thereto, it appearing to the court that Norma B. Lappe is deliberately preventing the service of the bill of complaint on her as one of the defendants therein, on motion of A. M. Neeper, Esq., solicitor for plaintiffs, it is ordered and directed that a true and correct copy of the bill of complaint in this case and a true copy of this order be attached to the handle of the lock of the front door of the dwelling-house of Norma B. Lappe, No. 5508 Baywood Street, 11th Ward, City of Pittsburgh, Allegheny County, Pennsylvania, and like copies of said bill and order be attached to the handle of the lock of the door at the rear entrance of said dwelling-house; further, that said copies be so attached in the presence of at least two adult persons, who shall sign and swear to an affidavit or affidavits detailing the procedure and the facts constituting the fastening of said bills of complaint and orders to the entrances of said dwelling-house, which affidavits shall be filed in the records of this proceeding. It is further ordered, adjudged and decreed that if the defendant, said Norma B. Lappe, does not within fifteen days from the date of the fastening of said copies of said bill of complaint and order to her said residence, as aforesaid, enter a written appearance therein, and, having entered an appearance, does not within thirty days of the date of the affixing of said copies at said dwelling-house as aforesaid, file an answer to the bill of complaint, then, in case of the failure of said defendant either to enter an appearance or to file an answer to bill of complaint, the same may be taken pro confesso and a decree entered in her absence, and all proceedings in the suit shall be with the same force and effect as if personal service of said bill of complaint had been made upon said defendant, Norma B. Lappe, as required by the equity rules now in force and effect.

To this order the following return was made by three men chosen to make the service:

“All three affiants aver, that at about 10.B0 A. M., March 20th, 1928, the bells on the front and rear entrances of defendant’s residence situate as above specified were operated and in addition thereto the front and rear doors were knocked upon and kicked forcibly to such an extent that any occupant of said residence any place therein could hear, both the bells and the knockings and kickings on said doors. To all of said signals no response was made and nobody came to either the front or rear doors.

“The stranded wire which was in our possession was cut in two lengths and one end of said strand of wire was wrapped around the shank of the knob or lock of the front door two or three times and tightly looped in position so that the end of the wire extended beyond the loop or knot fastening it to the shank of the door handle or knob of the lock. That the other end of said length of wire was threaded through the eyelets, fastening together a true and correct copy of the bill of complaint in the above entitled case and the order of court entered on March 19, 1928, and directed to be attached to said residence of said defendant. The end of the strand of wire so threaded the eyelet fastening said documents was then threaded through the loop of the screw eye which had been screwed into the jamb oí the door in which said lock was located and which fastened said door and was brought back and threaded through the loops of said wire made by carrying through the openings in the eyelets fastening said documents together. That the free end of said wire was then twisted around the other free end thereof extending beyond the knot in said wire at the shank of said lock and the twisted wire looped around that part of the wire extending through said eyelets; that the wire so fastened to the lock and the screw eye with the bill of complaint and order thereon was' fastened between the lock and said screw eye in such a manner that said door could not be opened without the party opening the same observing the documents and using considerable force to break the wire or removing said wire and documents by cutting said wire.

“All of said affiants aver that having fastened said bill of complaint to the residence of said defendant at the front and rear doors thereof in the manner above indicated, left said premises about eleven o’clock A. M., on March 20, 1928, and that while there no occupant of the house appeared at either door to render service of the bill of complaint in the above entitled case upon said occupant by handing a copy thereof to said occupant.”

Counsel for plaintiff presented this return to the court, when the following order was entered enabling the proceeding to be finally adjudicated:

Order of court.

And now, March 21, 1928, the foregoing return and verification thereof of the service of the order of this court entered March 19, 1928, and the bill of complaint attached thereto, being presented in open court, 'on motion of the solicitor for the plaintiffs, upon consideration thereof, the same is directed to be filed.

From William J. Aiken, Pittsburgh, Pa.


author: Fleming, P. J.,

text:
    Erdley v. Harpster.
    S. D. Gettig and John J. Bower, for rule; John G. Love, contra.
    July 10, 1928.

   Fleming, P. J.,

A rule was issued by the late Judge Keller on Nov. 9, 1926, on the motion of the plaintiff, directing the defendant to appear and show cause why the appeal from the judgment rendered by Michael Womer, Esq., justice of the peace, State College, Pa., in favor of the plaintiff and against the defendant should not be stricken from the record. The reasons assigned were (a) because the appeal affidavit is not signed by the appellant, J. G. Harpster, and (b) because no bail is entered by the appellant, J. G. Harpster, for debt, interest and costs as required by law. The only paper attached to the record purporting to be bail is a recognizance to the Court of Quarter Sessions for the appearance of the said J. G. Harpster at the September Sessions of 1926. The justice of the peace from whom such appeal was taken is now deceased and we are informed that his docket is temporarily lost.

We do not feel that this rule should be made absolute in the present state of the record. It is our opinion that the appellant should be given an opportunity to perfect his appeal before the rule is finally determined.

We shall first consider the objection raised to the affidavit of appeal. It bears the proper caption of this case, recites the exact amount of the judgment and the costs of the justice of the peace and constable, and is signed by the justice himself, supported by his official seal and the date of the expiration of his commission. It certifies that the appellant appeared before him and was qualified according to law; that the appeal was entered not for the purpose of delay, but that if the proceedings appealed from are not removed, the appellant will be required to pay money that is not justly due. This is not the exact wording of the Act of March 25, 1903, P. L. 61, which requires the appellant to “make affidavit in writing that the appeal is not for delay, but because he verily believes injustice has been done.” It is, however, a substantial compliance with the requirements thereof and is capable of being perfected: Dean v. Delaware, Lackawanna & Western R. R. Co., 19 Dist. R. 101; Kachinski v. Smitka, 18 Luzerne Legal Reg. 15. The main objection to the affidavit of appeal is that it has not been signed by the appellant. In Womelsdorf v. Heifner, 104 Pa. 1, it is held that in every instance where the appeal is defective in statutory requirements it should be perfected later, where no injury may result. Mr. Justice Paxson, in his opinion, says: “The law favors the right of appeal. 'It involves the right of trial by jury. Where an appeal has been taken in good faith and within the time prescribed by law, it is usual to allow a defect to be amended. In other words, to perfect the appeal.” Here, the justice of the peace certified that the appellant had appeared before him and had sworn and subscribed to the affidavit of appeal. Of course, he did not sign the affidavit, but it is plain that the reason for this omission was the evident failure of the justice of the peace to direct him so to do. If the appellant still is willing to subscribe to the required oath, there is no reason why he should be deprived of having the matter adjudicated in this court.

As to the defective bail, the entire weight of authority seems to favor the right to the appellant to perfect the same: Lord and Drake v. Hodgson, 18 Dist. R. 72; United States Casualty Co. v. Dubar, 18 Dist. R. 660; Thomas v. Hottenstein, 47 Pa. C. C. Reps. 194; Gharet v. Johnson, 4 D. & C. 173; Kerr et al. v. Martin et al., 122 Pa. 436; Lentz v. Kittanning Real Estate Co., 72 Pa. Superior Ct. 513.

It is true that the form of the bail is wholly irregular, but we must take into cognizance the fact that the appellant attempted, in good faith, to comply with the statutory requirements and feel that he was misled by the justice of the peace who submitted to him, and who permitted him to sign, a wrong form. The paper purporting to be bail in this case shows the penal sum, the intent to be bound and contains the signatures of the principal and surety, as well as the attestation of the justice of the peace indicating his approval thereof. The appellant was without counsel at the time of taking the appeal and cannot be charged too heavily with the niceties of the procedure.

The question of the appellant’s laches has been raised by counsel for the plaintiff. The record shows that judgment was rendered by the justice of the peace on Aug. 5, 1926; that appellant immediately gave notice of an appeal; that the papers purporting to be bail and the affidavit of appeal were executed on Aug. 39 and 31, 1926, respectively, and that the transcript was filed in this court on Sept. 7, 1926. The fact that the matter has not been brought before the court for final determination before this is wholly excusable in the light of the death of Judge Keller and the death of the justice of the peace, Womer. The death of the latter almost wholly prevented the appellant from perfecting his appeal, as even now this court must specifically aid in directing the manner in which such shall be perfected.

And now, July 19, 1928, it is ordered that if the appellant shall, within fifteen days, appear before Frank Miller, Esq., justice of the peace, State College, Pa., the successor of the late Michael Womer, Esq., justice of the peace, and shall perfect his affidavit of appeal and bail in the manner prescribed by law, the rule to show cause why the appeal should not be stricken off will be discharged; otherwise it will be made absolute.