Work Legal Record

Vol. XXXI THURSDAY, JANUARY 17, 1918. No 36.

as though no delay had occurred. That the negotiations continued until sometime in August, 1917, when the owner, through her attorney, agreed to pay to the claimant's attorney the amount of the lien less $125 in full settlement of it. The answer of the

School District

Mandamus Right to Sue-Tuition.

claimant is supplemented by an answer filed Messiah Orphanage v. Monaghan Twp. by his counsel, George W. Ryon, Esq., who, in addition to the above recited facts, avers that he had a conversation with counsel for the owner in the spring of 1917 about placing the case upon the list for trial but that he agreed not to do so upon the representation by counsel for the owner that the case could not go to trial on account of the owner's illness. It is further averred that the owner has repudiated the agreement of her counsel for the settlement of the said case because she is in league with another of her creditors in an effort to avoid the lien, and request is made to the Court, in said supplemental answer, to allow the issuance of a writ of scire facias nunc pro tunc.

The case is before the Court for disposition on petition and answer. Counsel for the rnle to strike off the lien agrees that the facts set forth in the original, and in the 'supplemental answer, are correct. The question to be determined is whether, upon the admitted facts, the rule to strike off the lien must prevail, or whether the Court has! power to authorize the issuance of a scire facias nunc pro tunc.

Section 10 of the Act of 1901, supra, requires a scire facias upon a mechanic's lien to be issued within two years from the date upon which it is filed, unless the owner in writing, filed before the expiration of said time, waeves the necessity for so doing for a further period not exceeding three years. The said section also provides that if a lien be not prosecuted in the manner and at the times aforesaid, it shall be wholly lost.

It is admitted that the lien in question was not prosecuted in accordance with the statutory requirements. The reasons for the failure to do so are set forth in the answers to the rule to strike off the lien. Whatever our view might be in the absence of the plain terms of the statute, we are of the opinion that the statute is mandatory, and that the Court cannot give the claimant the relief prayed for. See Sterling B. Co.,

Plaintiff, a duly incorporated orphanage, sued out, in its own name, a writ of mandamus to comcertain of its minor inmates, under the Act of May pel defendant school district to furnish schooling to 9, 1913, P. L. 192. The defendant moved to quash the writ, because plaintiff was not a party beneficially interested in the enforcement of the law. HELD, that the writ must be quashed. enforcement of the School Board's alleged public Plaintiff is not pecuniarily interested in the duty, as the cost of such tuition would be payable by the several school districts in which the respective children have their legal residences. Nor has it such a beneficiary interest, or is it such legal representative of the personal interests of these children, as will entitle it to sue out a writ of mandamus in its own name.

The Act of May 9, 1913, P. L. 192, provides
that when an alternative writ of mandnmus is
sued out "to procure the enforcement of a public
duty," the proceedings shall be prosecuted in the
name of the Commonwealth on the relation of
of the proper county, as the case may require.
the Attorney General or of the District Attorney
No. 47, October Term, 1917.
Alternative Mandamus.
Motion to Quash.

S. B. Meisenhelder, for motion.
R. S. Spangler, contra.

January 7th, 1918. WANNER, P. J.— This alternative mandamus was issued on the petition of the "Messiah Orphanage" of Monaghan Township, York County, Pa., to compel the School Directors of said township to furnish schooling to certain minor inmates of said institution, under the mandatory provisions of the Act of May 9th, 1913, P. L. 192.

It alleges that plaintiff's demand for tuition of said children in the public schools of said township was refused by defendants, and that when they were sent in pursuance of said demand to the nearest public school, they were refused admission by the teacher in charge of the same.

The defendants now move the Court to quash said writ because it was sued out by

the plaintiff in its own name, instead of in No quasi parental relation, or guardianthe name of the Commonwealth on the rela- ship of these children, in the petitioner, can tion of the District Attorney of York be presumed merely from the fact of their County, for the reasons (1) That the being inmates of this Orphanage; Black v. "Messiah Orphanage" is not a party which Graham et al., 238 Pa. 381. is itself "beneficially interested" in the enforcement of the law. (2) It is not alleged in the petition that these children had no parents or guardians of their persons, who might sue out the writ in their interest.

The other objections are general and go rather to the merits of the case, than to the regularity of the proceedings.

The Act of 1913, supra., provides that when an alternative writ of mandamus is sued out "to procure the enforcement of a public duty," the proceedings shall be prose

The plaintiff, therefore, on the allegations of the petition itself, has no such legal standing in court, either as one having "beneficiary interest" in the enforcement of this alleged public duty of the School Board, or as the legal representative of the personal interests of these children, as entitles it to sue out this writ in its own name. For these reasons it should be quashed in order to secure statutory regularity of proceedings, and permanency of results in this case.

and the writ of mandamus is quashed.
The rule to show cause is made absolute,

cuted in the name of the Commonwealth on
the relation of the Attorney General or of
the District Attorney of the proper County, C. P. of
as the case may require.

A private citizen, having no personal interest in the matter other than that which is common to all other citizens of the District, cannot sue out the writ in his own name; Vide cases 3rd Purd. Dig. (13th Ed.) 2426, notes (s) and (r).

Montgomery Co.

Elkins v. Rosenberger

Damages-Joint Defendants-Husband and
Wife.

Plaintiffs brought suit against husband and wife for the recovery of damages, which, according to the statement of claim, were the result of of her husband." The defendants were not an assault committed by the wife "in the presence alleged to have been tort-feasors, neither was any concert of action averred or shown. The testimony clearly showed that the husband dedid not either actively or passively participate in fendant was not an active tort-feaser; that he the alleged assault by his wife upon plaintiff ; that he was not present when it occurred and that when he returned his only act was to take or motion to take off compulsory non-suit that "upon

In Kaine et al. v. Comth. ex rel. Manaway, 101 Pa. 490, the father of the child who had been refused admission to the public schools on account of its color, sued out the writ in his own name and no question was raised as to his right to do so, probably because of his personal interest in his son, or because as his natural guardian he repre-pull his wife away from the scene. HELD, on a sented the son's interest in the enforcement of the law.

But in the very recent case of Comth. ex rel. Wait v. Schumaker et al., 255 Pa. 67, which case, like this, was for the enforcement of the statutory right of children inmates of an Orphans' Home to tuition in the public schools, the writ was sued out on the relation of the District Attorney of the County.

In this case the "Messiah Orphanage" itself does not appear to be pecuniarily interested in this matter, as the tuition of its pupils in the public schools would, under the terms of the Act of 1913 itself, be payable by the several school districts in which the respective children have their legal residences. It may be, too, that these children have parents, or legal guardians, who would be the proper parties to sue out a writ in their interest, as nothing to the contrary appears in the plaintiff's petition for this writ.

the record as it stood at the time of the trial, and upon the plaintiffs' evidence, no verdict could have been properly rendered against anyone.”

Motion to take off compulsory non-suit. James M. Simms and Harold G. Knight, for Plaintiff.

J. Ambler Williams, for Defendant.

October 31, 1917. MILLER, J.-The plaintiffs were servants of the defendants at their residence in Elkins Park, this county. The plaintiff husband was the chauffeur and his wife acted as mother's helper and made herself generally useful about the household. They occupied rooms over the garage.

Mrs. Elkins became dissatisfied with these quarters and the plaintiffs decided to leave their employment. Before their departure, on the evening of January 19, 1916, Mrs. Elkins went alone to the house, met Mr.

Rosenberger in the second floor hallway and asked him for the wages she claimed to be then due. He left her standing in the hallway and entered a bed-chamber to get the money. She testified that he went out of her sight and that she did not know where he had gone "he had left my presence.'

The trial judge having refused the following point for charge: "If under all the evidence in the case the fraud in the case was that of defendant's wife, the husband would in law be answerable for this to the plaintiff as for his own fraud and the verdict should be for the plaintiff," it was argued to the contrary on the appeal, that the husband was answerable for the torts of his wife committed after marriage.

During Mr. Rosenbergers absence, his wife came into the hallway, whether from the room he had entered, or elsewhere, we The Supreme Court, speaking through are not clear in our recollection, and, find- Mr. Justice Brown, says of this contention: ing Mrs. Elkins there, it is claimed, com- "We know of no rule of law that ever permitted an unprovoked assault upon her.mitted a husband's property to be taken It was over when Mr. Rosenberger returned from him on a deed forged by his wife, or with the money. He immediately took his the forgery of which was procured by her. wife away. Since the passage of the act of June 8, 1893 Daniel Elkins and his wife then brought P. L. 344, a married woman may be sued this suit against both the Rosenb rgers for civilly in all respects and in any form of the recovery of damages and in their state-action with the same effect and results and ment of claim set forth that the assault was consequences as an unmarried person, except committed by Mrs. Rosenberger "in the that she may not be arrested or imprisoned presence of her husband." The defendants for her torts. Under that act she, and not were not alleged to have been joint tort- her husband, is liable in damages for her feasors, neither was any concert of action torts." averred or shown.

A compulsory non-suit was entered at the close of the plaintiffs' case and we now have this motion to take it off.

In Smith v. Machesney et al., appellants, 238 Pa. 538, the plaintiff sued both husband and wife, defendants, for the recovery of damages for personal injuries sustained by her being injured in stumbling over the edge

It should be noted that, before the nonsuit was entered, the plaintiffs were afforded of a freight elevator, which, it was claimed, an opportunity to discontinue as to the husband defendant and amend their statement accordingly. This they declined to do. It may be conceded that, under the facts shown, this suit was properly brought under the common law; Hess v. Heft, 3 Pa. Sup. Ct. 582.

**

had been negligently permitted to project above the side-walk in front of real estate that was owned by the defendant wife. No claim was made against her husband as an actual tort-feasor. The defendants appealed from a judgment against them entered on a verdict in favor of the plaintiff. Mr. Justice The act of June 8, 1893, P. L. 344, in its Potter, speaking for the Supreme Court, section 3, provides, in part, however, that: said: "The liability for which recovery is "Hereafter a married woman may sue and sought is based entirely upon the ownership be sued civilly in all respects and in any of the property by the wife. It is not conform of action and with the same effect and tended that either husband or wife was results and consequences as an unmarried present when the tort was committed, or person nor may she be arrested or that the husband was personally guilty of imprisoned for her torts." the negligence which caused the injury to In Gustine, appellant, v. Westenberger, the plaintiff. The neglect of duty charged 224 Pa. 455, the appellee's wife had induced was that of the wife's employees, for which her brother to personate her husband in she would be responsible. The husband executing a mortgage and acknowledging it seems to have been joined as a defendant in before a notary public. A writ of scire this case under the idea that the common facias was afterwards issued for its collec- law liability of the husband for the torts of tion. The appellee defended by claiming the wife still prevails. But whatever may his signature to the mortgage to have been have been the rule at common law, we held forged and denying that he had acknowl-in Gustine v. Westenberger, 224 Pa. 455 edged it. The verdict and judgment were (460): Since the passage of the act June in his favor. On appeal, the judgment 8, 1893, P. L. 344, a married woman may was affirmed. be sued civilly in all respects and in any

form of action with the same effect and where in the house; and after he "had left results and consequences as an unmarried my" (Mrs. Elkins') "presence." This was person, except that she may not be arrested a material variation between the allegata or imprisoned for her torts. and probata.

As we view the case, "upon the record as it stood at the time of the trial, and upon the plaintiffs' evidence, no verdict could have been properly rendered against anyone." The motion to take off compulsory non

Under that act, she and not her husband, is liable in damages for her torts. In the present case it was, therefore, not only unnecessary but improper to join the husband as a defendant. We do not understand that the claim in this case was made against suit is overruled. the husband as an actual tort-feasor, but

only by reason of his supposed responsibility

for the tort of his wife." The judgment C. P. of against the husband defendant was, there

fore, reversed.

In Wollaston v. Park, appellant, 47 Pa.

Lackawanna Co.

Bailer's Appeal

Filing of recognizance-Act 15 April, 1834, P. L. 556.

Sup. Ct. 90, in which the judgment of the Appeal from report of township auditorslower court in favor of the plaintiff was affirmed, it, at the trial, had refused a point to the effect that "the defendant's husband is liable for the defendant's torts and as he has not been joined as co-defendant with her in this suit the verdict must be for the defendant," and this refusal, had been assigned as error. We do not see that, as contended by the plaintiff, this case is at variance with those above mentioned, upon the authority of which the non-suit in the case at bar was entered.

The testimony in this case was not transcribed and we have nothing but our own trial notes before us. They clearly show that the husband defendant was not an actual tort-feasor; that he did not, either actively or passively, participate in the alleged assault by his wife upon Mrs. Elkins; that he was not present when it occurred; and that when he returned, his only act was to take or pull his wife away from the

scene.

There was no concert of action between himself and his wife. His first act, upon his return, was one of repudiation of her conduct.

Under these facts there was, as we understand the authorities cited, no liability on his part and he was improperly joined as a defendant.

of the township treasurer's account will be stricken
An appeal from township auditors' settlement
off where no recognizance was filed within thirty
days from the time of the settlement, as required
by Sec. 104 of the Act of 15 April, 1834, P. L. 556.
Rule to strike off appeal.

M. J. Martin, for Appellant.
J. W. Carpenter, for Appellee.

December 21, 1917. EDWARDS, P. J.The appeal in this case was allowed and filed on February 8, 1915. The petition for the appeal states that the treasurer's account was audited on January 10. The specification of the grounds of the appeal. was filed on February 10, and the auditors' report was filed on January 12. The bond, or recognizance, was not filed until February 13. Whichever of two of the above dates is taken-January 10, when the account was audited, or January 12, when the auditors' report was filed-the recognizance was filed too late.

In such a case, under the Act of 1834, the appeal must be made from the settlement by the auditors within thirty days after such settlement, "provided that no appeal by such officer shall be received unless the appellant As stated, we suggested at the trial that shall enter into a recognizance with two the error be corrected, but the suggestion sufficient sureties, conditioned to prosecute was declined. This left no alternative ex- the appeal with effect," etc. It has been cept to enter the compulsory non-suit and decided that an appeal without a recognizance such was done for this reason alone, and is a nullity and that the time to enter into a without reliance upon the further fact that the plaintiffs declared on a tort committed by the wife "in the presence of her husband" while their proof showed that the act was done when he was "out of sight;" else

recognizance is limited to the thirty days; McCready v. McGovern et al., 1 Kulp 474.

The rule is made absolute and the appeal is stricken off.