40 Pa. Super. 361 | Pa. Super. Ct. | 1909
Opinion by
Although the record — composed as it is of a number of petitions, answers, appeals and proceedings collateral to the main issue — -presents an aspect at first blush somewhat confusing, yet neither its length nor apparent complications can obscure the few basic facts upon which the liability of the present appellant rests.
The plaintiff began an action against one Klein before an alderman of the city of Pittsburg for the recovery of a debt less than $300, and in due course obtained a judgment. The defendant in that judgment, being a freeholder, claimed the right to have a stay of execution. This right could be exercised only on compliance with the statutory requirement. To fulfill this requirement he induced the present appellant to appear before the magistrate where he entered into a recognizance “in the sum of $525 as bail absolute in double the amount of the judgment, conditioned for the payment thereof in event of defendant’s failure to pay at the expiration of stay of execution, viz.: nine months.” He further stated under oath as a part of his recognizance that he was the owner of real estate valued at $10,000, with an incumbrance of $2,000 against it. The original defendant thus obtained the benefit of the stay of execution for the period of nine months. At the expiration of that period, the debt not having been paid, and the debtor having become a bankrupt, a scire facias on the recognizance was issued by the magistrate, at the instance of the plaintiff, and the appellant duly summoned. He failed to appear, and the plaintiff, having made the necessary proof, was awarded a judgment on the recognizance. Shortly afterwards the appellant appeared before the magistrate and demanded a transcript for an appeal to the court of common pleas. The magistrate being of the opinion that under such circumstances he was not entitled to an appeal, refused it. An application was thereupon made to the court of common pleas and a writ of alternative mandamus obtained, whereupon a transcript issued and the appellant, having paid
On the same day on which the appellant, now the defendant, took his appeal, he also filed with the magistrate a petition setting forth that he had entered into recognizance under the impression that he was merely becoming bail for the costs on an ordinary appeal by Klein from the original judgment, having been, as he alleges, misled therein by the statement of Klein as well as of the clerk of the magistrate. The alderman refused the prayer of this petition and from that order the defendant again appealed to the common pleas where his appeal was pending at the time the court made absolute the rule for judgment for want of a sufficient affidavit of defense. It was from the latter judgment that the present appeal is taken.
The learned counsel for the appellant frankly admits that if in such case a recognizor became bound through a mistake for which the plaintiff was not responsible, that fact would be no defense to an action on the recognizance. It will be observed from what has been already stated that the defendant is a man of considerable property. He is presumably a man of ordinary intelligence, able — certainly in the absence of any averment to the contrary — to read and understand the obligation he executed.
The original affidavit of defense and the petition and supplemental petition of the defendant in support thereof set forth four grounds of defense. The first ground, to wit: that he mistakenly became bail absolute when he only intended to become surety for the payment of the costs, we understand to be practically abandoned. If it was not, the case of Clark v. McComman, 7 W. & S. 469, and the long line of cases following it, furnish ample authority for the conclusion of the court that this ground of defense availed nothing.
In the attempt to avoid, as we understand it, the force of these decisions, which rest to some extent at least on the ground that the plaintiff was in no way responsible for such mistake, the defendant undertook to aver that the alderman was the
It is again sought to be set up as a ground of defense that the plaintiff is a foreign corporation and was doing business illegally in the state of Pennsylvania. Again the court correctly answers as follows: “The averment is merely a conclusion of law. The facts upon which defendant relies in support of his assertion that the plaintiff was doing business in the state of Pennsylvania should be stated with reasonable certainty. There is no averment as to when or how the plaintiff was doing business, nor that the indebtedness sought to be recovered against Klein was any part of such business transacted in this state.”
Finally, it was contended that because the original debtor had become a bankrupt within four months after the date of the rendition of the original judgment against him, upon which this appellant became surety, the judgment became void, and therefore the liability of the surety was at an end. It is so manifest that this contention rests upon a misapprehension of the effect of the adjudication in bankruptcy, as well as of the obligation of the recognizor, that no discussion is needed to show that this ground of defense was worthless.
As long as the record remained before the magistrate, this appellant-had the right to file his petition for the purpose of having any error of fact corrected, or in other words, for the purpose of having that record so amended as. to make it speak the truth according to the actual facts. He did nothing for the period of nine months, during which the stay of execution he had brought about was operative. When the action oi scire facias was begun and he was duly warned, he failed to appear or make any defense. Even after judgment had gone against him, he could still have properly made his application to the magistrate. He at the same time had the statutory right to take
Judgment affirmed.
