Графични страници
PDF файл
ePub

Our belief is, that such irregularities 1923, by agreement of counsel for the are some of the things the "Practice Act claimants and the plaintiff in the execu1915" intended to remedy by the provi- tion, a feigned issue was framed to try sions of the 20th section of that Act. by jury the title of the personal property Under the said law, we are required to so claimed. The claimants at the time "make such order as may be just." filed the usual interpleader bond with apAnd now, February 16th, 1925, we dred dollars. No statement was filed by proved security in the sum of two hunmake the following order:

them until June 25, 1924. On June 16, That action No. 202 August Term, 1924, the attorney for the plaintiff in the 1924, brought by Tucker Winder, plain- execution moved for an order of non tiff vs. I. K. Lukacher, defendant, be dis- pros, because of the failure of the claimcontinued at the costs of the plaintiff; ants to file a statement within two weeks when so discontinued, the said plaintiff after an issue had been awarded. This and his wife may continue the suit being refused, a motion was made on brought by them to No. 201, August July 5, 1924, to strike off the statement, Term, 1924, and reform the pleading in and, at the same time, a petition was said suit, in conformity with the require-filed asking for a rule to show cause why ments of the Act of Assembly approved judgment of non pros should not be enMay 8th, 1895, P. L. 54.

C. P. of

Lancaster Co.

tered against the claimants in the issue, for failure to file a statement within two weeks after the issue was granted. On it, this rule was granted.

The Act of May 26, 1897, P. L. 95,

Sprecher et al. v. Kennedy et al. requires a claimant of goods levied on by

[blocks in formation]

execution to file a bond and statement within two weeks after an issue is awarded. The claimants in this case did file their bond, which is the matter of most importance to the execution plaintiff, but failed to file their statement within the required time. No complaint of this delav was made by the execution plaintiff for about five months after the claimants were in default, and the present rule was not granted until after the statement was filed.

In Barndollar v. Fogarty, 203 Pa. 617, Justice Brown said: "It is true the act does provide that the statement shall be filed within two weeks from the time the rule for an issue is made absolute, unless, for cause shown the time be extended by the court, and, after the expiration of that period, if the statement is not filed, the plaintiff in the execution can act by asking for an order that the sheriff do proceed with his writ or that judgment

Hassler, J., January 17, 1925. In an amicable action of ejectment, judgment was entered in this court against Gray-of non pros be entered in the issue. But bill R. Sprecher, on November 28, 1923. A writ of habere facias possessionem with a clause of fi. fa. was issued on it, and personal property supposed to belong to the defendant was levied upon. Mary Sprecher and Florence G. Kennedy claimed some of it, and on December 1,

if the plaintiff does not act when he may, after the expiration of two weeks during the period of the claimant's inactivity, there is nothing in the act which says he may do so after the latter has acted by filing his statement. * ** She herself (the plaintiff in the execution) had

not been vigilant, and she could not, after the claimant had acted, ask for judgment against it, because it had not been diligent. Under the Procedure Act of May 25, 1887, P. L. 271, a defendant is required to file his affidavit of defense within fifteen days after the plaintiff's statement has been served. But it has never been pretended that, if a defendant, after the expiration of the period within which he ought to have filed his affidavit of defense, does file it, judgment can then on motion be taken against him for want of it. * * * And in Ritter v. Leonard, 2 Pars. 255, it was held that, if plaintiff enters a rule to show cause why judgment should not be entered for the want of an affidavit of defense, the defendant may file one at any time before the return day of the rule. This is the universally recognized practice. 1 T. & H. Section 417."

In this case, both parties have been in default, but a statement has been filed before judgment of non pros has been entered. The plaintiff in the execution has not suffered by the delay in filing the statement, as the bond has been filed, fully protecting him in any right he may have in the goods and chattels claimed. As shown by the case above cited, the claimants could file their statement at any time before the return day of the rule to enter judgment of non pros.

We are, therefore, of the opinion that the statement in this case was filed in time, and we discharge the rule to strike it off, and also discharge the rule for judgment of non pros. Rules discharged.

C. P. of

Allegheny Co.

Finance & Guaranty Company v.
E. A. Myers Company

[blocks in formation]

Before: Shafer, P. J.; Reid and Rowand, JJ..

Shafer, P. J., December 13, 1924.The judgments in these cases are entered upon warrants of attorney contained in assignments of automobile leases made in the name of the defendant company by some of its officers. The petition to open the judgment is founded upon the allegation that the officers of the defendant company who signed these assignments had no power to do so, and especially no power to make a warrant of attorney to confess judgment.

It appears from the testimony that the E. A. Myers Company is engaged in the business of making and selling automobile leases in the City of Pittsburgh, and that it at some time opened a branch in the City of Philadelphia, which was managed by C. S. Miller, who was a director and vice-president of the company, and a son of E. A. Myers, president of the company. These representatives of the defendant in Philadelphia sold three leases to the plaintiff, and gave them power of attorney to confess judgment in case of default in the payments on the leases. One of these was executed in the name of the defendant by C. S. Miller, vicepresident, and another by C. S. Miller, sales manager, and a third by J. W. Myers, manager.

The plaintiff sets up in its answers to these petitions that it had made inquiry of the company in Pittsburgh as to the powers of these representatives in Philadelphia, and had been told that they had power to make such sales, but there was no evidence given to show that. The defendant's testimony is to the effect that these representatives in Philadelphia were expressly forbidden to do what they did. As it is ordinarily not any part of the power of an officer of a corporation to confess judgment against it without some authority from the directors, we are of opinion that the judgments must bailment lease was opened where the judg-be opened to allow a defense to be made company without authority from the direc- as to the powers of the officers who untors to do so. Ordinarily confessing judg- dertook to confess these judgments. The

Judgment-Opening - Corporation Power of officer to confess-Directors.

A judgment confessed on a warrant in a

ment had been confessed by an officer of the

ment against it is not any part of the power' of an officer of a corporation.

rules are therefore made absolute.

C. P. of

York Co. Samuel Kurtz, Administrator v. York Volunteer Firemen's Relief Association

lows: "Upon the death of a member of this association, in good standing, the relief committee shall pay to the widow or legal heirs, provided said member does not leave a will designating who is to receive, the sum of three hundred and fifty ($350.00) dollars, (or so much of it as is left after the funeral expenses are pro

Beneficial association- Benefits paya-vided for, that the law hereinafter speci

ble to executor or applicable to payment of funeral expenses.

to

fied), within sixty days in two payments, the first, an order of $25.00 if desired, shall be granted at the first meeting after the death, and the relief committee shall pay the same to the widow or legal heirs ; when the second order is granted the relief committee shall see that all funeral expenses are provided for, if not, pay the same, but in no case to exceed the amount granted by this association, and

Where the by-laws of a beneficial association provide that upon the death of a member, the relief committee shall pay the widow, or heirs, certain benefits, provided the member does not leave a will designating who shall receive the benefits, and directs the committee to see that all funeral expenses are provided for, if not, to pay the same: the executor of a dely bequeathed the benefits payable by the then turn the balance over to the proper association, is entitled to receive the parties, always taking their receipt for amount payable as benefits by the asso-|the same." ciation; the testator in bequeathing the benefits relieved the association from payment of the funeral expenses.

ceased member who by his will specifical

Motion for judgment for want of sufficient affidavit of defense in Samuel Kurtz, Administrator c. t. a. of the Estate of Jacob H. Bott, deceased, vs. York Volunteer Firemen's Relief Association, of the City of York, Pa., No. 187 April Term, 1924. Rule absolute.

Charles A. May, for plaintiff.
James G. Glessner, for defendant.

Wanner, P. J., February 24th, 1925.The plaintiff's right to recover in this case is based upon the provisions of the by-laws of the York Volunteer Firemen's Relief Association of York, Pa., of which Jacob H. Bott, deceased, was admittedly a member in good standing at the time of

his death.

Article II of its by-laws states the object of the association as follows: "The object and purpose of the corporation is to provide a fund for the use and benefit of its members, who may become disabled while in the service, or who may die or be killed, and for the widows and children or nearest of kin of deceased members or such persons as may be designated by said members by last will and testament of persons authorized to receive the same under the by-laws of said association."

Section 5, Article XI, provides as fol

*

* *

The will of Jacob H. Bott, deceased, provides inter alia as follows: "ITEM I order and direct and it is my desire and I hereby bequeath Anna M. Rupp for services rendered me during my life and attendance during my illness, all and every the benefits and sums payable upon my decease, from the Firemen's Relief Association of York, Pa."

The executor named in testator's will having renounced the trust, the plaintiff, Samuel Kurtz, was duly appointed administrator c. t. a. of decedent's estate, and he brings this suit alleging that payment to him of the death benefits of $350.00 accruing under the provisions of Section 5, Article XI, supra, has been refused by the defendant.

above stated facts, contends that it is not The defendant, though admitting the bound to pay over said moneys to the plaintiff because the funeral expenses of decedent have not yet been paid or adequately provided for, and because whatever may be payable to any one, over and above the funeral expenses, is payable by the defendant directly to the parties entitled to receive it, and not to the decedent's administrator.

But this is clearly irrelevant matter and not a sufficient defense to the plaintiff's claim. What is set forth in the statement and the affidavit of defense, as to the payment of the funeral expenses of the decedent, or provisions made by

the children of decedent for payment of ners outside of the county where suit is inthe same, is quite immaterial to the is

stituted.

ment against all of the partners, under

a

transcript judgment was stricken off and all

Rules to strike off judgment and to set aside levies, as to Allen H. Leibensperger. Rules absolute.

sue before the court, and seems to be On an exemplified transcript of a judgbased upon the mistaken theory that not-service of one as aforesaid, entered in the withstanding the fact that the testator court of common pleas of another county, the has disposed of the entire fund in ques-process issued thereunder was set aside. tion by will, the association still has authority to retain and to distribute it. But there is no such provision in either of the above quoted sections of the bylaws of the association. Both recognize the right of a member to dispose by will of the entire fund accruing at his death, to whomsoever he pleases, and Sec. 5, Art. XI only directs to whom and in what manner the fund shall be paid out, provided "said member does not leave a will designating who is to receive the sum of $350.00."

In the event of its disposition by will the fund therefore obviously becomes payable to the testator's executor, or as in this case, to his administrator c. t. a. to be applied by him as directed in the

testators will.

This death benefit, is only necessarily a funeral fund, to be so applied by the association itself, in cases where it is not disposed of by will.

The testator in bequeathing it to any other party, relieves the association from payment of his funeral expenses, or from assuming any other obligation in his be

half, with reference thereto.

Booth & Barthold, for plaintiff.

Henninger & Snyder, for defendant Leibensperger.

Iobst, J., December 1, 1924.-The plaintiff in this case obtained a judgment against the defendant partnership in the County, Pa. No. 812 April Term is an exCourt of Common Pleas of Northampton in the common pleas of Lehigh County. emplified report of said judgment entered By the record and by admission of counsel for plaintiff at the argument the summons in the suit in Northampton County was served upon Preston H. Kratzer, personally, by the sheriff of Northampand was served upon Allen H. Leibenton County, in Northampton County, Perger in Lehigh County by the sheriff of Lehigh County, who was deputized by the sheriff of Northampton County to make the service. No appearance was entered in Northampton County by either Kratzer, whereupon judgment was enterAllen H. Leibensperger or Preston H. ed against the partnership for the amount of plaintiff's claim. It appears that the prothonotary of Lehigh County indexed the exemplified record of the judgment obtained in Northampton County against the Bethlehem Development Company as well as against Allen H. Leibensperger and Preston H. Kratzer individually. At the same time the plaintiff caused to be issued a writ of fieri facias directing the sheriff of Lehigh County to levy upon and sell all of the personal property in the possession of Allen H. Leibensperger, Frisbie Lumber Co. v. Kratzer, et al. and later on caused to be issued an at

Whatever arrangements may have been made between the children of the testator, and the undertaker who conducted his funeral, for payment of these expenses, is res inter alios acta, and does not affect the right of the administrator c. t. a. to receive this fund, because he was not a party to the transaction.

And now to wit, February 24th, 1925 Judgment is entered in favor of the plaintiff and against the defendant, for the sum of $350.00, with costs of suit, for want of a sufficient affidavit of de

fense.

C. P. of

Lehigh Co.

Practice, C. P.-Partnership-Service -Judgment-Transcript-Jurisdiction.

tachment execution as of No. 2 October Term, 1924, against the Farmers' National Bank of Egypt, Lehigh County, as garnishee, for monies of Allen H. Leib

In a suit against a copartnership, there is ensperger, in its possession. Whereupon no authority in law to serve one of the part-Allen H. Leibensperger presented his pe

But

tition in this court to strike off the judg- the property or business gave jurisdiction ment entered as of No. 812, April Term, to the courts under existing law. 1924, and to set aside the levies in that nowhere have we been able to find any case, and in the attachment execution. authority for the service of the writ of The plaintiff filing his answers thereto, summons in assumpsit against a partner brought the matter before the court. who resides outside of the county While this issue was pending, plaintiff in- "wherein it was legally issued" by depstituted an action of assumpsit as of No. utizing the sheriff of the resident coun48 October Term, 1924, Common Pleas, ty of the defendant to serve the writ County of Lehigh, against the same de- within that county. We therefore come fendant partnership admittedly on the to the conclusion that the service of the same cause of action on which judgment writ issued by the common pleas of had been recovered in Northampton Northampton County upon Allen H. County, and secured service of the sum- Leibensperger by the sheriff of Lehigh mons in this case upon the said Allen County, in Lehigh County, was an irreH. Leibensperger. In this latter proceed-gular service, and therefore bad. ing Allen H. Leibensperger entered an appearance and then filed an affidavit of defence raising questions of law.

The validity of the judgment against the partnership obtained in the common pleas of Northampton County cannot be attacked in this court, nor its merits in- . quired into: King v. Nisuick, 34 Pa. 297; Lacock v. White, 19 Pa. 495. But if the judgment thus obtained against the partnership in Northampton County was erroneously entered against the petitioner, Allen H. Leibensperger, in the prothonotary's office of Lehigh County, it may be

The primary questions at issue are the following: namely, (a) the service of process in the suit instituted in Northampton County, by the sheriff of Lehigh County, upon a resident of Lehigh County, in Lehigh County; (b) of what effect is a judgment obtained against a partnership in respect to the separate property of one of the partners who was not pro-stricken from the records as a void judgperly served.

ment, and something not lawfully recorded there: McKinney v. R. P. and J. The Act of July 9, 1901, P. L. 614, Brown, 130 Pa. 365; Schuykill Co. v. prescribes the methods of service of cer- Minogue, 160 Pa. 164; Cover v. Brown, tain process in actions at law, and the et al. 7 Pa. Dist. Rts. 19. There is no effect thereof, and providing who shall be question in the mind of the court that made parties to certain writs. It pro- the judgment obtained against the partvides for service of summons, etc., by the nership is not a good and valid judgment, sheriff "in the county wherein it is is- although service was had only on one of sued." In certain actions, to wit: Where the partners, and that that judgment is a trespass or nuisance have been com-binding on all the partnership assets upon mitted on real estate; actions on insur-execution. We are also convinced that ance policies or certificates, under certain under the judgment thus obtained the conditions; actions against foreign cor- plaintiff may follow the assets of that porations; actions for damages caused partner who was served with the writ. by automobiles; etc., this act and other But before the individual property of Alacts of the Assembly have provided that len H. Leibensperger can be levied upon service of the summons may be had by and sold, he must be brought in on the the sheriff of such other county, who writ by personal service in orderly and shall be deputized for that purpose by the lawful manner. If it is sought to hold sheriff of the county in which the writ not only the partnership property, but issues. This is a regulation of service the separate and personal estate of each only. As said by Mr. Justice Mitchell in individual partner, then the service must Park Bros. & Co. v. Oil City Boiler be made upon each partner: Walsh v. Works, 204 Pa. 453, 457, the words, Kirby, 228 Pa. 194. Prior to the Act of "county wherein it is issued," and "coun- April 6, 1830, P. L. 277, the plaintiff ty where the cause of action arose," mean county wherein it was legally issued, and county where the location of

would now be without a remedy against Allen H. Leibensperger individually. But this act changed the law on that subject.

« ПредишнаНапред »