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Work Legal Record Appellant v. Syria Improvement Association,

Vol. XXXI

No 36.

226 Pa. 475; Haas v. Schmidt, 26 D. R.

293. THURSDAY, JANUARY 17, 1918.

The rule to strike off the lien must,

therefore, be sustained. as though no delay had occurred. That

The rule to strike off the mechanic's lien
the negotiations continued until sometime in in the above stated case is made absolute,
August, 1917, when the owner, through her and the said lien is directed to be stricken
attorney, agreed to pay to the claimant's from the record.
attorney the amount of the lien less $125 in
full settlement of it. The answer of the
claimant is supplemented by an answer filed Messiah Orphanage v. Monaghan Twp.
by his counsel, George W. Ryon, Esq., who,

School District
in addition to the above recited facts, avers
that he had a conversation with counsel for

Mandamus --Right to Sue Tuition.
the owner in the spring of 1917 about plac- Plaintiff, a duly incorporated orphanage, sued
ing the case upon the list for trial but that out, in its own name, a writ of mandamus to com-
he agreed not to do so upon the representa- pel defendant school district to furnish schooling to

certain of its minor inmates, under the Act of May tion by counsel for the owner that the case., 1913, P. L. 192. The defendant moved to quash could not go to trial on account of the the writ

, because plaintiff was not a party beneowner's illness. It is further averred that ficially interested in the enforcement of the law. the owner has repudiated the agreement of Held, that the writ must be quashed. her counsel for the settlement of the said enforcement of the School Board's alleged public

Plaintiff is not pecuniarily interested in the case because she is in league with another of duty, as the cost of such tuition would be payable her creditors in an effort to avoid the lien, by the several school districts in which the reand request is made to the Court, in said spective children have their legal residences.

Nor has it such a beneficiary interest, or is it supplemental answer, to allow the issuance such legal representative of the personal interests of a writ of scire facias nunc pro tunc. of these children, as will entitle it to sue out a The case is before the Court for disposi- writ of mandamus in its own name.

The Act of May 9, 1913, P. L. 192, provides tion on petition and answer. Counsel for that when an aliernative writ of niandnmus is the rnle to strike off the lien agrees that the 'sued out “to procure the enforcement of a public facts set forth in the original, and in the duty,” the proceedings shall be prosecuted in the supplemental answer, are correct.

The name of the Commonwealth on the relation of question to be determined is whether, upon of the proper county, as the case may require.

the Attorney General or of the District Attorney the admitted facts, the rule to strike off the

No. 47, October Term, 1917.
lien must prevail, or whether the Court has
power to authorize the issuance of a scire

Alternative Mandamus.
facias nunc pro tunc.

Motion to Quash.
Section 10 of the Act of 1901, supra, re-

S. B. Meisenhelder, for motion.
quires a scire facias upon a mechanic's lien R. S. Spangler, contra.
to be issued within two years from the date January 7th, 1918. WANNER, P. J.-
upon which it is filed, unless the owner in This alternative mandamus was issued on
writing, filed before the expiration of said the petition of the Messiah Orphanage" of
time, waeves the necessity for so doing for Monaghan Township, York County, Pa.,
a further period not exceeding three years. to compel the School Directors of said town-
The said section also provides that if a lienship to furnish schooling to certain minor
be not prosecuted in the manner and at the inmates of said institution, under the manda-
times aforesaid, it shall be wholly lost. tory provisions of the Act of May 9th,

It is admitted that the lien in question 1913, P. L. 192. was not prosecuted in aecordance with the It alleges that plaintiff's demand for statutory requirements. The reasons for tuition of said children in the public schools the failure to do so are set forth in the ans- of said township was refused by defendants, wers to the rule to strike off the lien. and that when they were sent in pursuance Whatever our view might be in the absence of said demand to the nearest public school, of the plain terms of the statute, we are of they were refused admission by the teacher the opinion that the statute is mandatory, in charge of the same. and that the Court cannot give the claimant The defendants now move the Court to the relief prayed for. See Sterling B. Co., quash said writ because it was sued out by

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the plaintiff in its own name, instead of in No quasi parental relation, or guardian-
the 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 en- The plaintiff, therefore, on the allegations
forcement of the law. (2) It is not alle ed of the petition itself, has no such legal
in the petition that these children had no standing in court, either as one having
parents or guardians of their persons, who beneficiary interest” in the enforcement of
might sue out the writ in their interest. this alleged public duty of the School Board,

The other objections are general and go or as the legal representative of the personal rather to the merits of the case, than to the interests of these children, as entitles it to regularity of the proceedings.

sue out this writ in its own name. For The Act of 1913, supra., provides that these reasons it should be quashed in order when an alternative wrii of mandamus is

to secure statutory regularity of proceedings, sued out "to procure the enforcement of a

and permanency of results in this case. public duty,” the proceedings shall be prose- 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

Montgomery Co. as the case may require.

Elkins v. Rosenberger A private citizen, having no personal interest in the matter other than that which DamagesJoint Defendants-Husband and is common to all other citizens of the Dis

Wife. trict, cannot sue out the writ in his own

Plaintiffs brought suit against husband and name;

Vide cases 3rd Purd. Dig. (13th wife for the recovery of damages, which, accordEd.) 2426, notes (s) and (r).

ing to the statement of claim, were the result of In Kaine et al. v. Comth. ex rel. Vana- of her husband." The defendants were not

an assault committed by the wife "in the presence way, 101 Pa. 490, the father of the child alleged to have been tort-feasors, neither was who had been refused admission to the pub- any concert of action averred or shown. The lic schools on account of its color, sued out testimony clearly showed that the husband dethe writ in his own name and no question did not either actively or passively participate in

an active cort-feaser; that he was raised as to his right to do so, probably the alleged assault by his wife upon plaintiff

; because of his personal interest in his son, that he was not present when it occurred and or because as his natural guardian he repre- pull his wife away from the scene. Held, on a

that when he returned his only act was to take or sented the son's interest in the enforcement motion to take off compulsory non-suit that upon of the law.

the record as it stood at the time of the trial, and But in the very recent case of Comth. ex upon the plaintiffs' evidence, no verdict could rel. Wait v. Schumaker et al., 255 Pa. 67, have been properly rendered against anyone.” which case, like this, was for the enforce- Motion to take off compulsory non-suit. ment of the statutory right of children in

James M. Simms and Harold G. Knight, mates of an Orphans' Home to tuition in

for Plaintiff. the public schools, the writ was sued out on the relation of the District Attorney of the

J. Ambler Williams, for Defendant. County,

October 31, 1917. Miller, J.–The In this case the “Messiah Orphanage" it- plaintiffs were servants of the defendants at self does not appear to be pecuniarily inter- their residence in Elkins Park, this county. ested in this matter, as the tuition of its The plaintiff husband was the chauffeur pupils in the public schools would, under the and his wife acted as mother's helper and terms of the Act of 1913 itself, be payable made herself generally useful about the by the several school districts in which the household. They occupied rooms over the respective children have their legal residences. garage.

It may be, too, that these children have Mrs. Elkins became dissatisfied with these parents, or legal guardians, who would be quarters and the plaintiffs decided to leave the proper parties to sue out a writ in their their employment. Before their departure, interest, as nothing to the contrary appears on the evening of January 19, 1916, Mrs. in the plaintiff's petition for this writ. Elkins went alone to the house, met Mr.

not

wife away.

Rosenberger in the second foor hallway The trial judge having refused the foland asked him for the wages she claimed to lowing point for charge: "If under all the be then due. He left her standing in the evidence in the case the fraud in the case hallway and entered a bed-chamber to get was that of defendant's wife, the husband the money. She testified that he went out would in law be answerable for this to the of her sight and that she did not know plaintiff as for his own fraud and the verwhere he had gone—"he had left my dict should be for the plaintiff," it was presence."

argued to the contrary on the appeal, that During Mr. Rosenbergers absence, his the husband was answerable for the torts of wife came into the hallway, whether from his wife committed after marriage. 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.

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.

In Smith v. Machesney et al., appellants, A compulsory non-suit was entered at the 238 Pa. 538, the plaintiff sued both husband close of the plaintiffs' case and we now have and wife, defendants, for the recovery of this motion to take it off.

damages for personal injuries sustained by It should be noted that, before the non- her being injured in stumbling over the edge suit was entered, the plaintiffs were afforded of a freight elevator, which, it was claimed, an opportunity to discontinue as to the had been negligently permitted to project husband defendant and amend their state-, above the side-walk in front of real estate ment accordingly. This they declined to do. that was owned by the defendant wife. No

It may be conceded that, under the facts claim was made against her husband as an shown, this suit was properly brought under actual tort-feasor. The defendants appealed the common law; Hess v. Heft, 3 Pa. Sup. from a judgment against them entered on a Ct. 582.

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 sougbt 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 Tesults 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.

I be sued civilly in all respects and in any

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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. Under that act, she and not her husband, As we view the case, “upon the record as is liable in damages for her torts. In the it stood at the time of the trial, and upon present case it was, therefore, not only un- the plaintiffs' evidence, no verdict could necessary but improper to join the husband have been properly rendered against anyone." as a defendant. We do not understand The motion to take off compulsory nonthat 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

Lackawanna Co. against the husband defendant was, therefore, reversed.

Bailer's Appeal In Wollaston v. Park, appellant, 47 Pa. Sup. Ct. 90, in which the judgment of the Appeal from report of township auditors, lower court in favor of the plaintiff was Filing of recognizance- Act 15 April, affirmed, it, at the trial, had refused a point 1834, P. L. 556. to the effect that “the defendant's husband iš liable for the defendant's torts and as he of the township treasurer's account will be stricken

An appeal from township auditors' settlement has not been joined as co-defendant with off where no recognizance was filed within thirty her in this suit the verdict must be for the days from the time of the settlement, as required defendant," and this refusal had been as- by Sec. 104 of the Act of 15 April, 1834, P. L. 556. signed as error. We do not see that, as

Rule to strike off appeal. contended by the plaintiff

, this case is at variance with those above mentioned, upon

M. J. Martin, for Appellant. the authority of which the non-suit in the J. W. Carpenter, for Appellee. case at bar was entered.

The testimony in this case was not trans- December 21, 1917. EDWARDS, P. J.cribed and we have nothing but our own. The appeal in this case was allowed and trial notes before us. They clearly show filed on February 8, 1915. The petition that the husband defendant was not an for the appeal states that the treasurer's actual tort-feasor; that he did not, either account was audited on January 10. The actively or passively, participate in the al- specification of the grounds of the appeal leged assault by his wife upon Mrs. Elkins; was filed on February 10, and the auditors' that he was not present when it occurred; report was filed on January 12. The bond, and that when he returned, his only act was or recognizance, was not filed until Februto take or pull his wife away from the ary 13. Whichever of two of the above

dates is taken - January 10, when the acThere was no concert of action between count was audited, or January 12, when the himself and his wife, His first act, upon auditors' report was filed—the recognizance his return, was one of repudiation of her was filed too late. conduct.

In such a case, under the Act of 1834, Under these facts there was, as we under- the appeal must be made from the settlement stand the authorities cited, no liability on by the auditors within thirty days after such his part and he was improperly joined as a settlement, “provided that no appeal by such defendant.

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 recognizance is limited to the thirty days; the plaintiffs declared on a tort committed McCready v. McGovern et al., i Kulp by the wife "in the presence of her husband" 474. while their proof showed that the act was The rule is made absolute and the appeal done when he was "out of sight;" else- is stricken off.

scene.

Vol. XXXI

in the sum of twenty thousand dollars, Work Legal Record

before constructing the said crossings, costs

of equity proceedings pending to be paid by THURSDAY, JANL'ARY 24, 1918. No 37. the Hanover and McSherrystown Street

Railway Company." Baltimore and Harrisburg Railroad Co.

2. On September 6th, 1893, the defendv. Hanover and McSherrystown ant, above named, in accordance with the Street Railway Co.

above decree, filed in said Court its bond in Bond-Death of Sureties--Jurisdiction.

the sum of twenty thousand dollars, with

Charles E. Ehrehart, Samuel L. Johns, and To settle a controversy between a steam rail-Lewis D. Sell, as sureties, which bond was road company and a trolley company, concerning approved by the Court. grade crossings, the latter gave a bond to cover all damages that might accrue at said crossings

3. On March 1, 1909, the defendant by reason of the negligence of itself, its officers, | filed its petition in court, praying that it be agents or ernployees. Subsequently there was a permitted to substitute a new bond for the change of sureties, and when the second set of said bond approved September 6th, 1893; on sureties were all dead, the plaintiff railroad company petitioned for a new bond. Held, that the the same day the Court made an order and petition must be granted.

decree allowing the new bond to be filed in Tnere being no past or present claim during lieu of and as a substitute for the said bond the life of the sureties, nor any credit which could filed on the 6th day of September, 1893, have been obtained because of their names on the bond, it is plain that no liability under the bond and discharging and relieving the above now exists for which the surelies could be held named sureties on said last montioned bond liable.

from all further liability thereon, which new The Public Service act of June 26, 1913, P. L. bond in the sum of twenty thousand dollars 1408, provides that "nothing in this act contained shall in any way abridge or alter the existing drawn in conformity with the said decree rights of actions or remedies in equity or under made on Angust 30th, 1893, and signed by the common or statutory law of the Common-William H. Lanius, John W. Steacy and wealth."

George P. Smyser, as sureties, was on said The decree providing for a bond issued out of a Court of Equity on August 30, 1893, and has | March ist, 1909, duly filed in, and apbeen in force ever since. It is such a condition proved by the Court; counsel for the plainas the legislature apprehended when it passed the tiff consenting to the filing and approval section (29) above referred to.

thereof. No. 2, August Term, 1893.

4. Subsequently, the said "Baltimore and Rule to file bond.

Harrisburg Railway Company" and other

railroad companies were merged with the Geo. S. Schmidt, for rule.

said “Western Maryland Railway ComT. F. Chrostuaite, contra.

pany" under the laws of Pennsylvania, and January 14th, 1918. Ross, 1-The es-consolidated into a single corporation by the sential facts of this case are as follows: name, style, and title of "Western Mary

1. On August 30th, 1893, in a suit land Railway Company," possessing within entered by the Baltimore and Harrisburg the Commonwealth of Pennsylvania all the Railway Company" and the Western rights, privileges and franchises of each of Maryland Railroad Company," as Plaintiffs, the corporations so consolidated; among the against “The Hanover and 11 Sherrystown rights and properties so acquired was the Street Railway Company” as defendant, this ownership and right to maintain and operate Court entered a decree, relating to certain the railroad of the “Baltimore and Harrisgrade crossings, of which the following was burg Railway Company," at the crossings a part.

referred to in the said Court's decree of "7. That the Hanover and McSherrys- August 30th, 1893. town Street Railway Company shall enter 5. The said“ Western Maryland Railinto a bond with surety or sureties to be ap- way Company,” now presents a petition proved by the Court conditioned to indem- averring "that all of the suretics on the nify and save harmless the plaintifts against bond of the above named defendant, filed in all suits, actions, claims, demands and dim- 'this court on Varch 1, 1909, are dead, said ages by all persons on account of any ac- George P. Smyser and W. H. Lanius havcident at either of said crossings occasioned ing respectively died on the 28th day of by the negligence of sand defendant, its of- February, 1912, and on the 21st day of ficers, agents or employees, said bond to be January, 1913, and their estates have here

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