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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 C'nder 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, Wt 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.
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. C. P. of
The Act of May 26, 1897, P. L. 95, Sprecher et al. v. Kennedy et al. requires a claimant of goods levied on by
execution to file a bond and statement within two weeks after an issue is award
ed. The claimants in this case did file Practice -- Sheriff's inter pleader their bond, which is the matter of most Statement Act of Vay 26, 1897, P. L. importance to the execution plaintiff, but
failed to file their statement within the 95.
required time. No complaint of this de
lav was made by the execution plaintiff Where a plaintiff in a sheriff's interpleader for about five months after the claimants fails to file a statement within two weeks were in default, and the present rule was after the issue has been awarded as required by the Act of May 26, 1897, P. L. 95, but he not granted until after the statement was subsequently files it, the defendant is not en-filed. titled, after it is filed, to have it stricken off and a non-suit entered.
In Barndollar v. Fogarty, 203 Pa. 617,
Justice Brown said: “It is true the act Rule for judgment of non pros and to does provide that the statement shall be strike off plaintiff's statement. Refused. filed within two weeks from the time the
rule for an issue is made absolute, unless, Chester 1. Diller, for rules.
for cause shown the time be extended by
the court, and, after the expiration of S. R. Zimmerman, contra.
that period, if the statement is not filed,
the plaintiff in the execution can act by Hassler, J., January 17, 1925. In an asking for an order that the sheriff do amicable action of ejectment, judgment proceed with his writ or that judgment was entered in this court against Gray-of non pros be entered in the issue. But bill R. Sprecher, on November 28, 1923. if the plaintiff does not act when he may, A writ of habere facias possessionem after the expiration of two weeks during with a clause of fi. fa. was issued on it, the period of the claimant's inactivity, and personal property supposed to be there is nothing in the act which says he long to the defendant was levied upon. may do so after the latter has acted by Mary Sprecher and Florence G. Kennedy filing his statement.
She herclaimed some of it, and on December 1,' self (the plaintiff in the execution) had
not been vigilant, and she could not, af- Sur rule to open judginent. Rule abter the claimant had acted, ask for judg-solute. ment against it, because it had not been John B. Nicklas, Jr., for plaintiff. diligent. Cnder the Procedure Act of May 25, 1887, P. L. 271, a defendant is
W'eil, Sipe & Campbell, for defendrequired to file his affidavit of defense within fifteen days after the plaintiff's Before: Shafer, P. J.; Reid and Rowstatement has been served. But it has and, JJ.. never been pretended that, if a defend- Shafer, P. J., December 13, 1927.ant, after the expiration of the period | The judgments in these cases are entered within which he ought to have filed his upon warrants of attorney contained in affidavit of defense, does file it, judgment assignments of automobile leases made can then on motion be taken against him in the name of the defendant company for want of it.
And in Ritter by some of its officers. The petition to v. Leonard, 2 Pars. 255, it was held that, open the judgment is founded upon the if plaintiff enters a rule to show cause allegation that the officers of the defendwhy judgment should not be entered for ant company who signed these assignthe want of an affidavit of defense, the ments had no power to do so, and espedefendant may file one at any time before cially no power to make a warrant of atthe return day of the rule. This is the torney to confess judgment. universally recognized practice. 1 T. &
I & It appears from the testimony that the H. Section 417.
E. A. Myers Company is engaged in the In this case, both parties have been in business of making and selling automodefault, but a statement has been filed be- bile leases in the City of Pittsburgh, and fore judgment of non pros has been en- that it at some time opened a branch in tered. The plaintiff in the execution has the City of Philadelphia, which was mannot suffered by the delay in filing the aged by C. S. Miller, who was a director statement, as the bond has been filed, and vice-president of the company, and fully protecting him in any right he may a son of E. A. Myers, president of the have in the goods and chattels claimed. company. These representatives of the As shown by the case above cited, the defendant in Philadelphia sold three leasclaimants could file their statement at any es to the plaintiff, and gave them power time before the return day of the rule to of attorney to confess judgment in case enter judgment of non pros.
of default in the payments on the leases. We are, therefore, of the opinion that One of these was executed in the name the statement in this case was filed in of the defendant by C. S. Miller, vicetime, and we discharge the rule to strike president, and another by C. S. Miller, it off, and also discharge the rule for sales manager, and a third by J. W. judgment of non pros.
Myers, manager. Rules discharged.
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 Phila
delphia, and had been told that they had Allegheny Co.
power to make such sales, but there was Finance & Guaranty Company v. no evidence given to show that. The E. A. Myers Company
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 Judgment-Opening - Corporation the power of an officer of a corporation Power of officer to confess-Directors.
to confess judgment against it without
some authority from the directors, we A judgment confessed on a warrant in a are of opinion that the judgments must bailment lease was opened where the judna be opened to allow a defense to be made ment had been confessed by an officer of the company without authority from the direc- as to the powers of the officers who un
C. P. of
Ordinarily confessing judg. dertook to confess these judgments. The ment against it is not any part of the power' of an officer of a corporation.
rules are therefore made absolute.
tors to do so.
pay the same;
the executor of a
C. P. of
York Co. lows: "l'pon the death of a member of Samuel Kurtz, Administrator v.
this association, in good standing, the re
lief committee shall pay to the widow or York Volunteer Firemen's legal heirs, provided said member does Relief Association
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 proBeneficial association-. Benefits paya- vided for, that the law hereinafter specible to executor or applicable to payment tied), within sixty days in two payments,
the first, an order of $25.00 if (lesired, of funeral expenses.
shall be granted at the first meeting after Where the by-laws of a beneficial
the death, and the relief committee shall sociation provide that upon the death of pay the same to the widow or legal heirs ; a member, the relief committee shall pay when the second order is granted the re
the widow, or heirs, certain benefits, provided the member does not leave a will lief committee shall see that all funeral designating who shall receive the benefits, and directs the committee to see that an expenses are provided for, if not, pay funeral expenses are provided for, if not, the same, but in no case to exceed the ceased member who by his will specifical. I then turn the balance over to the proper
de- amount granted by this association, and ly bequeathed the benefits payable by the association, entitled
receive the parties, always taking their receipt for amount payable as benefits by the asso- | the same.''
* ciation; the testator bequeathing the benefits relieved the association from pay- The will of Jacob H. Bott, deceased, ment of the funeral expenses.
provides inter alia as follows: "ITEM Vlotion for judgment for want of suf- I order and direct and it is my desire ficient affidavit of defense in Samuel and I hereby bequeath Inna M. Rupp Kurtz, Administrator c. t. a. of the Es- for services rendered me during my life tate of Jacob 11. Bott, deceased, vs. York and attendance during my illness, all and Volunteer Firemen's Relief Association, every the benefits and sums payable upon of the City of York, l'a., No. 187 April my decease, from the Firemen's Relief Term, 1924. Rule absolute.
Association of York, Pa.”
The executor named in testator's will Charles J. Vlay, for plaintiff.
having renounced the trust, the plaintiff, Jaunes G. Glessner, for defendant. Samuel Kurtz, was duly appointed ad
ministrator c. t. a. of decedent's estate, llanner, P. J., February 24th, 1925,- and he brings this suit alleging that pay. The plaintiff's right to recover in this ment to him of the death benefits of case is based upon the provisions of the $350.00 accruing under the provisions of
5, Article XI, supra, has been reRelief Association of York, Pa., of which fused bi the defendant. Jacob H. Bott, deceased, was admittedly a member in good standing at the time of
The defendant, though admitting the
above stated facts, contends that it is not his death. Article II of its by-law's states the ob- plaintiff because the funeral expenses of
bound to pay over said money's to the ject of the association as follows: "The decedent have not yet been paid or adeobject and purpose of the corporation is quately provided for, and because whatto provide a fund for the use and benefit of its members, who may become dis- and above the funeral expenses, is pay
ever may be payable to any one, over abled while in the service, or who maylable by the defendant directly to the pardie or be killed, and for the widows and ties entitled to receive it, and not to the children or nearest of kin of deceased decedent's administrator. members or such persons as may be des
But this is clearly irrelevant matter ignated by said members by last will and not a sufficient defense to the plainand testament of persons authorized to tiff's claim. What is set forth in the receive the same under the by-laws of statement and the affidavit of defense, as said association."
to the payment of the funeral expenses Section 5, Article XI, provides as fol- ' 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 issue before the court, and seems to be
On an exemplified transcript of a judgbased upon the mistaken theory that not-service of one
ment against all of the partners, under
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.
transcript judgment was stricken off and all tion by will, the association still has authority to retain and to distribute it.
Rules to strike off judgment and to set But there is no such provision in either aside levies, as to Allen H. Leibensperof the above quoted sections of the by-ger. Rules absolute. law's of the association. Both recognize the right of a member to dispose by will of the entire fund accruing at his death,
Booth & Barthold, for plaintiff. to whomsoever he pleases, and Sec. 5,
Henninger & Snyder, for defendant Art. XI only directs to whom and in What manner the fund shall be paid out,
Leibensperger. provided “sail member does not leave a will designating who is to receive the sum plaintiff in this case obtained a judgment
lobst, J., December 1, 1924.- The of $350.00.”
In the event of its disposition by will against the defendant partnership in the the fund therefore obviously becomes County, Pa. Vo.812 April Term is an ex;
Court of Common Pleas of Northampton payable to the testator's executor, or as in this case, to his administrator c. t. a. in the common pleas of Lehigh County.
emplified report of said judgment entered to be applied by him as directed in the By the record and by admission of countestators will. This death benefit, is only necessarily
sel for plaintiff at the argument the suma funeral fund, to be so applied by the mons in the suit in Northampton County association itself, in cases where it is not
was served upon Preston H. Kratzer, disposed of by will.
personally, by the sheriff of NorthampThe testator in bequeathing it to any land was served upon Allen H. Leiben
ion County, in Northampton County, other party, relieves the association from payment of his funeral expenses, or from perger in Lehigh County by the sheriff assuming any other obligation in his be- of Lehigh County, who was deputized by
the sheriff of Northampton County to half, with reference thereto.
make the service. No appearance was Ilhatever arrangements may have been made between the children of the entered in Northampton County by either testator, and the undertaker who con
Allen H. Leibensperger or Preston H. ducted his funeral, for payment of these
Kratzer, whereupon judgment was enterexpenses, is res inter alios acta, and does ed against the partnership for the amount not affect the right of the administrator
of plaintiff's claim. It appears that the c. t. a. to receive this fund, because he prothonotary of Lehigh County indexed
the exemplified record of the judgment was not a party to the transaction. And now to wit, February 24th, 1925:
obtained in Northampton County against Judgment is entered in favor of the the Bethlehem Development Company as plaintiff and against the defendant, for well as against Allen H. Leibensperger the sum of $350.00, with costs of suit, and Preston H. Kratzer individually. At $
the for want of a sufficient affidavit of de
same time the plaintiff caused to be
issued a writ of fieri facias directing the fense.
sheriff of Lehigh County to levy upon
and sell all of the personal property in Lehigh Co.
the possession of Allen H. Leibensperger, Frisbie Lumber Co. v. Kratzer, et al. and later on caused to be issued an at
tachment execution as of No. 2 October
Term, 1924, against the l'armers' NationPractice, C. P.-Partnership-Service al Bank of Egypt, Lehigh County, as -Tudgment-Transcript--Jurisdiction. 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
C. P. of
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. But 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 coun18 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
The validity of the judgment against defence raising questions of law.
the partnership obtained in the common
pieas of Northampton County cannot be The primary questions at issue are the attacked in this court, nor its merits in- . following: namely, (a) the service of quired into: King v. Nisuick, 34 Pa. 207; process in the suit instituted in North- Lacock v. White, 19 Pa. 495. But if the ampton County, by the sheriff of Lehigh judgment thus obtained against the partCounty, upon a resident of Lehigh Coun- nership in Northampton County was erty, in Lehigh County ; (b) of what effect roneously entered against the petitioner, is a judgment obtained against a partner-Illen H. Leibensperger, in the prothonoship in respect to the separate property, tary's office of Lehigh County, it may be of one of the partners who was not pro- i stricken from the records as a void judgperly served.
ment, and something not lawfully record
ed there: McKinney v. R. P. and J. The Act of July 9, 1901, P. I.. 614. Brown, 130 Pa. 365; Schuvkill 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. = l'a. 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-bincling on all the partnership assets upon mitted on real estate; actions on insur-lexecution. We are also convinced that ance policies or certificates, under certain under the juigment 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 II. 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
would now be without a remedy against mean county wherein it was legally is Allen H. Leibensperger individually. But sued, and county where the location of this act changed the law on that subject.