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money on the security aud applying it to C. P. of

Mon'gomery Co. the principal debt."

Alleva v. Gravinese et al. See also Miller v. Gettysburg Bank, 8 Watts 192; Scott v. ist Nat. Bank of Garnishee Attorney's Compensation Tulsa, 82 S. W. 751-5; Omaha Nat. Bank Laches. v. Kiper, 82 N. W. 102; Beale v. The

Garnishee petitioned the Court to open judgBank, 5 Watts 529; McQueen's Appeal, ment entered against him and to let him in for a 104 Pa. 595; Warbutron v. Trust Co., of defense, alleging ignorance of his rights and America, 16. Fed. 974-977.

liabilities.

The facts show that the garnishee was personThe Court in its general charge instructed ally served with interrogatories, that he had emthe jury that the plaintiff was not neces- | ploved counsel, who notified the Justice that he sarily bound to foreclose the mortgages im- represented the garnishes, and if garnishee failed

to recompense counsel for services to be rendered, mediately upon receiving notice to do so. he cannot now complain of the position in which That failure to do so might be owing to he has voluntarily placed himself. The garnconditions beyond the control of the Bank, ishee's rights would have been protected by apwhich could not be imputed to it as care- peal or certiorari, but a period of more than eight

inonths having elapsed from the time of the entry lessness. That the circumstances might be of the judgment and the transcript being filed in such that the Bank would lose by doing so, the Court of Common Pleas, the application to and that there might be good reason to be open judgment must be refused. lieve that the money wwight be made by Petition to open judgment. delaying action. Also that depreciation in

J. A mbier Williams for plaintiff. value of the property might be sudden, or from causes which no one could foresee.

Maxwell Strawbridge for defendant. For these reasons the Bank could not be November 23, 1917. Swartz, P. J.held liable under any and all circumstances Judgment was obtained against the defendfor failure to foreclose these mortgages, but ant, Guiseppe or Joseph Gravinese, before would be held only to the exercise of such the magistrate, Casper Puche, for the sum care of the collateral as a man of ordinary of $223.09. Execution was issued on Novprudence would give to important affairs of ember 28, 1916, and the constable returned his own. We are of the opinion that these “no goods." instructions were as favorable to the plaintiff On December 1, 1916, an attachmentas the established rules of law would per- execution was issued against Antonio Di mit the Court to give.

Nanno, as Garnishee. Interrogatories were The general assignment that the Court filed and personal service was made on the erred in its rulings on the admission and defendant and the garnishee, rejection of evidence at the trial of the case, fendant and the garnishee failed to appear

On the day fixed for a hearing the dewas abandoned at the argument and specific rulings were excepted to at all.

and no answers were filed to the said inter

rogatories. On August 8th, 1916, the Only the Court's answers to the plain- Justice gave judgment against the Garnishee, tiff's third and fourth points refusing, binding in default for not answering the interroinstructions, were excepted to before the gatories and also did not appear.” The jury retired, but we have also reviewed the judgment was entered for the same amount answers to the plaintiff's ist and 2nd points, theretofore given against the defendant. because they involve the same questions as On August 14, 1917, more than eight to plaintiff's liability for negligence, as does months after the judgment was entered, a the portion of the charge which was transcript was filed in the Court of Common excepted to.

Pleas for the purpose of obtaining liens The exception to the form of the verdict against the real estate of the defendant and

the Garnishee. was not pressed in court or argued by plain

During all this intervening time no appeal tiff's counsel, probably because no excep!ion had been taken to the form of the verdict at

or certjorari was taken to the proceedings the time of its rendition and recording,

before the justice.

In the application to open the judgment, The plaintiff's motions for a new trial, no exception or objection is made to the and for judgment non obstante veredicto are regularity of the proceedings had before the overruled and refused.

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The reasons given, in support of the ap- Common Pleas, upon a transcript of the jusplication to open the judgment, are stated tice, for the purpose of obtaining a lien, can as follows:

not be opened by an application to that Court. "Your petitioner believes, that since he This ruling is well established by numerous had no dealings with Guiseppe Gravinese, decisions of our Supreme Court; Lacock v. and being ignorant of his rights and liabili: ( White, 19 Pa. 495; Boyd v. Miller, 52 Pa. ties, in the premises, and relying upon the 431; Littser v. Littser, 151 Pa. 474. The statement of the constable, feels that the same ruling is found in Doerr v. Graybill, judgment of record is an injustice, as against 24 Pa. Superior Ct. 321. him, and, therefore, prays your Honorable

That the same rule of law applies to a Court to open said judgment and let your judgment entered by a justice against a petitioner, as Garnishee aforesaid, into a garnishee is shown in Boland v. Spitz, 153 defense."

In that case judgment was enterWhen the attachment and a copy of the ed against the garnishee by the alderman,

The Court said: interrogatories were served on the Garnishee, the Justice who speaks the Italian language, appeal, certiorari or otherwise and had,

"That judgment was never challenged by accompanied the constable. The justice explained the proceedings and the interro therefore, become as final and conclusive, on gatories to the Garnishee in Italian. When all the parties thereto, as the judgment of the latter stated he had no business dealin s any Court of competent jurisdiction. *** with the defendant, Joseph Gravinese, the

His only remedy was by appeal or

certiorari.” justice answered, that is all right but should employ a lawyer to protect your in the Common Pleas, to open the judgment

Even if we could entertain jurisdiction, interests. The Garnishee accordingly did employ the garnishee was ignorant of his rights,

we could not sustain the contention, that an attorney in the matter, before the return when the evidence shows he retained counday of the writ and b fore the time for the sel in ample time, to protect these rights. filing of answers to the interrogatories had

The other concention of the garnishee, expired.

that he had no money in his hands due and On the day before the hearing said at payable to the defendant, is also contradicted torney wrote a very unusual letter to the by the evidence. We are of opinion, that justice. It reads:

the weight of the evidence clearly shows "I represent Mr. Antonio Mannocchio, that there was a fraudulent combination to Guiseppe Mannocchio and Antonio Di misrepresent the true facts as to the relaNanno, upon whom you served certain in- tions between the defendant and the garnterrogatories which you desire answered. ishee. The disinterested witnesses show These people are perpectly willing to do that Joseph Gravinese was the contractor to this, providing you pay their attorney for build the houses for Di Nanno, and that the filing of said interrogatories."

Philip Gravinese was substituted as the conAfterwards a fee of ten dollars was tractor to defeat the payment of the plaindemanded.

tiff's claim. The only disinterested evidence After this correspondence, it is useless to apparently in conflict with this concluson, is talk about the ignorance of the garnishee's that of Mr. Moll who kept the accounts of rights and liabilities. He employed counsel the Norristown Brick Company, but when to protect him in his rights. If he failed to his testimony is examined, he fails to give pay the attorney for the services he was to any warrant for charging the bricks to render, he has no one to blame but himself Philip Gravinese. All his dealings beginfor his default in not answering the interro- ning with the quotation of the price for the gatories. Why should the justice be called bricks, were wiih Joseph Gravinese. upon to pay counsel fees?

It is, however, not necessary to base our If the Garnishee had a good defense be- action npon the merits of this branch of the cause he was not in any way indebted to the garnishee's contentention. For the reasons defendant then it was his duty to make that already given, we can not disturb the judg. defense before the justice. After the judg- ment, under the application now before us. ment was entered against him his only remedy The rule to show cause is discharged, was an appeal or a certiorari of the proceed and the application to open the judgment is ings. A judgment entered in the Court of refused.

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Vol. XXXI

Work Legal record single mule, were were sold as the property

of F. L. Tyson, the husband of the plain

tiff, and the defendant received the proceeds THURSDAY, APRIL 18. 1918., No **Pof the sale after deducting the costs and ex

penses of the judgment and execution against Tyson v. Tyson.

F. L. Tyson. Married Woman-Sale of Property. Under the 4. Before the seizure and sale of said Execution Against Husband - Punitive

. mules the said defendant was told by the

plaintiff or her husband, F. L. Tyson, that Damages.

the two pairs of black mules and one single Plaintiff sued to 'recover damages for the sale mule were the property of the plaintiff, Ida of her property, under an execution against her L. Tyson, and that they were not the husband. At the trial the evidence showing the purchase of the property by the plaintift

, dye property of the said F. L. Tyson, &c. notice of such ownership given to the defendant

5. The defendant is the brother of the and ample "pportunity for defendant to ascertain husband of the plaintiff. the truth of such claim before the day of sale, the Although the above facts were practically jury found for the plaintiff the amount for which admitted by the pleadings, the plaintiff called the mules were sold at rhe sale, interest and fifty ? dollars damages On a motion for new'trial, on avitnesses to establish them at the trial. the ground that there was no evidence to support The main contest at the trial was the enthe verdict for punitive damages, Held, that the deavor of the plaintiff to establish independmotion must be refused. There was admitted in evidence the note given

ent ownership of the property in question by plaintiff at the time she bought the mulesi by evidence in detail as to how she acquired receipt for the payment of the same and state each animal in question to convince the jury menis of the party from whom she bought the of her claim. mules. Held, not to be grounds for a new trial. 16. The evidence for the defense did not

These papers and statements were not offered as complete and conclusive evidence of owner- | directly contradict any of the material eviship, but as corroborative of plaintiff's direcikdence adduced for the plaintiff but its trend testimony on the subject.

at was to establish the theory that the mules In order to decide with accuracy upon the chara had been acquired and paid for out of the acter of any phenomenon or transaction we must know all the facts of which it consists, and all the joint accumulation of the husband and his circumstances that are truly connected with, and wife, while they were living together on influence it.

farms rented by the husband and that conNo. 46, April Term, 1917.-

sequently the property so accumulated was Action of trespass.

in the law the property of the husband,

The evidence was all left for the consideraMotion for new trial.

tion of the jury and buth parties signified A. W. Hermann for motion.

their agreement with the Court's expressed Niles & Nell, contra.

views by declining to except to any part of

the charge. The jury returned a verdict April 8, 1918. Ross, J.-By the plead for the plaintiff. As will be seen by referings the plaintiff avers and the defend- ence to the stenographer's transcript of the ant admits that, 1-the plaintiff was, on trial, the verdict was for the sum for which December 2nd, 1915, a married woman, the the mules were sold by the constable, with wife of F. L. Tyson.". 2. On or about De- interest from the day of the sale, and fifty cember 2nd, 1915, the defendant caused an dollars damage. execution to be issued upon a judgment. The plaintiff's statement demanded puniwhich he had obtained before a Justice of tive damages, and some of the evidence, if the Peace in the Borough of Red Lion, believed, indicated wantonness on the part York county, against F. L: Tyson, and on of the defendant; both counsel for defendant December 6th, 1915, he directed W. E and counsel for plaintiff discussed the quesStraley, a constable, to levy upon and take tion of such damages in their arguments to under said execution, on December 13th, the jury, so that it was incumbent on the 1915, two pairs of black mules and one Court to instruct the jury on the disputed single mule, and executed and delivered to / question of punitive damages which was said constable, a bond in the sum of $800.00 done in the following language: "In cases to indemnify the said constable, &c., &c. of this kind, sometimes the law will permit

3. On December 18th, 1915, under said a jury to impose punitive damages where execution, two pairs of black mules and one! they find for the plaintiff. Now, punitive

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damages means damages as punishment. by plaintiff, as requested by defendant on
Sometimes it is called exemplary damages, page 41."
which means damages for example, to set "11. The Court erred in not sustaining
an example for other persons. Only in defendant's objection to the offers of the
cases where there is wanton carelessness, į plaintiff on papers marked exhibit 20, 21,
where there is vindictiveness, or spite, or 22, 23, 23:1, and 24. The said papers being
where the defendant acts through malicious offered by the plaintiff for the purpose of
impulse, and thus injured or attempted to corroborating the witness (Mrs. Tyson) in
injure the plaintiff, is it usual to impose her answers to the questions propounded
such damages. There is hardly any measure on cross examination by counsel for the
for me to present to you by which you could defendant."
calculate that kind of damages. If the The uncontradicted evidence was that
plaintiff was humiliated by the defendant's the defendant was not only told before the
actions, or if the defendant acted in such a levy and sale by the plaintiff and her husband
malicious manner that in your verdict you that the property which was sold by the
should say to defendant, you must pay so constable by the persistent requirement of
much as punishment, or we will set the ex- the defendant, belonged to the plaintiff, but
ample to others who are liable to do the the constable inforined him of such a claim
same thing upon impulse, you can calculate by the plaintiff, which was given in writing
what such punitive damages should be, it before the sale under execution. The evidence
you render a verdict for the plaintiff.” All to that effect produced by the plaintiff was
the points submitted and not withdrawn such as the jury evidently believed, and was
were affirmed by the trial judge and no such that the facts could easily have been
request was made for any additional in ascertained by the defendant, if he would
structions.

have been inclined to have made proper inNow the defendant asks for a new trial, quiry before he ordered the levy and sale of because, he alleges through his counsel, that the property. It was for the jury to say

"1. There was no evidence to support from the evidence if the defendant acted the verdict for punitive damages.

with such undue wantonness or malicious"2. The Court erred in admitting in ness as to warrant the punishment which it evidence plaintiff's exhibit ‘No. 2, G.M.D.,' inflicted upon him by the verdict. The being note of Ida M. Tyson and Henry defendant's evidence divulges no act of care Tyson to Levi Kaltreider, for four hundred for the rights of the plaintiff and no excuse and fifty-two dollars ($452.00) dated March for levying and selling her property for the 22nd, 1911, under objections of defendant." debt of another, than his own general state

"3. The Court erred in admitting in ment that he asked the boys of F. L. Tyson, evidence receipt, being plaintiff's exhibit No. who are the step-sons of the plaintiff, and 3, G.M.D.,' under objections of defendant."(they said the mules belonged to their father.

"4. The Court erred in admitting as The jury evidently did not think that he evidence plaintiff's exhibit No. 4, G.M.D.,' was warranted in so recklessly and neglibeing receipt.”

gently inflicting the humiliation and trouble 5. The Court erred in admitting in of a constables' sale upon the plaintiff after evidence plaintiff's exhibit ‘No. 5, G.M.D.,' she had informed him of her exclusive own. being receipt from D. F. Frey."

ership of the property which he persistently 6. The Court erred in admitting in caused to be sold.' (See Whelan v. Miller, evidence plaintiff's exhibit ‘Nos. 7 and 8 49 Pa. Super. Ct. 99). G.M.D."

In our opinion, the evidence justified the "7. The Court erred in admitting in verdict. The first reason for new trial is, evidence note, under plaintiff's exhibit No. therefore, dismissed.

The 2nd, 3rd, 4th, 5th, 6th, and 7th “8. The Court erred in not sustaining reasons assigned as errors and for which dedefendant's objection to testimony of J. B. fendant asks for a new trial, are all admisHeilman on page 24."

sions of collateral evidence by the Court: "9. The Court erred in not striking out they were not offered as complete or con: the testimony of O. R. Arnold on page 33, clusive evidence but only as incidental and as requested by defendant."

tending to corroborate the plaintiff's direct “10. The Court erred in not striking testimony on the same subject. They were out the cross-examination of W. E. Craley, loffered in connection with the prior testi

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9, G.M.D."

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1901,

a

mony of the witness. They were private testimony and of the testimony of other of writings and their execution was proven by her witessess. competent witnesses.

The reasons advanced do not convince the "When a private writing is not directly Court that a new trial should be granted in in issue, but comes incidentally in question, this case. its execution may be proved by any com- And now, April 8th, 1918: The rule petent testimony"; Kitchen et al. v. Smith, granted is discharged and a new trial is re101 Pa. 452, 35 L. R. A. 350 (note XIV) fused with an exception to defendant. which cites Pennsylvania cases. The 8th, gih, and roth reasons are alleged

C. P. of

Lancaster Co. errors of the Court in not striking out certain testimony.

Mionich v. Hagen. The 8th was an exception to certain testimony of J. B. Heilman, who, the plaintiff's Assignment-Right to Collect Balance After evidence tended to show, sold certain of the Receiving Dividend - Deceit or Fraud. mules which had been levied upon and sold

Where a defendant when he gave judgment by the constable as the property of F. L. for a pre-existing debt, falsely stated to the plainTyson, after, (as the trend of the evidence tiff that he had given ng prior judgments, this was) plaintiff had notified the defendant, does not constitute such fraud or deceit in conthat said mules belonged to her. The bur- templation of Section 33 of the Act of June 4, den of proof was upon the plaintiff to prove issue execution on his judgment after having re

P. L. 404, as will permit the plaintiff to property, and the evidence complained of, ceived and duly released for, a dividend from the was, of course, not conclusive, but taken with assigned estate of the defendant who was

farmer. all the proceeding evidence on record was

As to farmers the Insolvency Act of June 4, res gestae, and tends to establish with the

1901, is not suspended by the Federal Bankrupt other evidence the theory upon which the Act of July 1, 1898, but is in force. plaintiff was trying to prove her case. It A falsehood or deceit can only be taken cognizwas not, (as defendant's counsel objected).a

ance of by the courts where it has induced some

one to do some act to his own injury. self-serving declaration, because it was inade not by any party in this suit, but by another Rule to open judgment and let defendant person, to an entire stranger whose ostensible into a defense. object was to make a sale to a responsible per- H. Edgar Sherts for rule. son; it pertains directly to the very claim of

Chas. E. Workman and Coyle & Keller, exclusive property in the plaintiff which she

contra. was endeavoring to establish. As was said by Lowrie, J., in Hollinshead v. Allen, 17 Pa. March 23rd, 1918. LANDIS, P. J.-By 275. “It is a principle of law, of logic, of the Insolvent Act of June 4, 1901, P. L. philosophy and of common sense, that in 404, Section 23, it is provided that “no order to decide with accuracy upon the claim against the insolvent's estate shall be character of any phenomenon or transaction allowed unless the claimant, or some one for we must know all the facts of which it con- him if he cannot do so, shall furnish to the sists, and all the circumstances that are truly assignee or receiver a statement of his claim, connnected with, and influence it.” This together with a copy of any book entries apis also true when we view, with the whole pertaining thereto, or any note or other testimony, the evidence of O. R. Arnold and writing evidencing the same, verified by an W. E Craley, complained of by defendant affidavit,” and, "if such claim and affidavit in his gth and oth reasons for a new trial. be in proper form, and the balance claimed (See Rees v. Livingston, 41 Pa. 113). agrees with the amount stated by the insolv

The roth reason given for a new trial, is ent, or upon consultation between the crediviewed by the Court as being without merit, tor and the insolvent the amount is agreed the exhibits complained of as being admitted upon, the claim shall be allowed if presented were, as the evidence tended to show, notes before the filing or audit of the account, unupon which the plaintiff had raised the less objected to in the manner hereinafter money and credit by which she obtained the set forth.” Section 26 provides that, “if, at alleged ownership of the mules which were the time of filing the account and list of the essential subject of the suit, and having ved claims, there are claims which remain been paid by her and produced by her, were unadjusted, or if objections be filed, the pertinent illustrations of the truth of her I court shall hear and decide the disputed

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