96 Pa. Super. 363 | Pa. Super. Ct. | 1929
Argued April 17, 1929.
This is an appeal from judgment for want of a sufficient affidavit of defense in a suit on a township tax collector's bond. We may assume that the suit resulted from the decision in Lawrence County v. Horner,
Accordingly, the present suit was brought to require the defendant, Houk, the collector who received the county treasurer's warrant to collect the taxes in Shenango Township, and the sureties on his official bond, to pay $178.26, averred to be the amount retained and not paid by him to the county treasurer as it should have been paid pursuant to the construction of the statutes made in Lawrence County v. Horner, supra, which, though made in 1924, represents what the law had been ever since the approval of the statutes, notwithstanding that a different view of the amount of the tax collector's compensation had been accepted locally.
The statement of claim set forth the statutes mentioned above, the duties assumed by the defendant collector, the retention by him and his refusal on demand to pay over the sum claimed, the filing and approval of his bond and the resulting liability of himself and his sureties. The affidavit of defense is defective and clearly insufficient; we must disregard its general denials, under familiar decisions construing the Practice Act: Kirk v. Showell Fryer Co.,
It will be noticed that the statement averred specific default by defendant Houk and that he did not pay $178.16 to the treasurer; there is no averment in the affidavit that Houk or any designated person on his behalf, did in fact pay the amount in dispute to the use-plaintiff or to the county treasurer. It is not enough to aver that nothing is due to the county; such an averment is merely defendant's opinion of the state of the account; the purpose of the suit and of the averment was to determine whether anything is due as alleged, and how much, not to ascertain defendant's opinion on the subject, for that opinion, however honestly entertained, might be based on a misunderstanding of the law governing the accounting; unless there was a specific traverse of the specific charge, the required issue was not made for trial. The same adverse comment applies to defendants' averment that *369
the sum "has been fully paid to and received by the County of Lawrence." When was it paid? Who paid it? Who received it on behalf of the county and what was his authority to release? Why are defendants careful to omit averring that it was paid by them or on their behalf, and to whom, if it was so paid? These are some of the obvious inquiries that at once suggest themselves as among the matters that defendants should have covered when charged with liability by direct averment of default, non-payment and refusal to pay; such evasion and uncertainty have been repeatedly held to be insufficient to stop judgment: Fulton Farmer's Association v. Bomberger,
Indeed, appellants' brief shows that they have not properly understood the statement of claim and for that reason have not sufficiently answered it; in the brief it is said "The highest point to which the allegations of the statement of claim can rise is that the amount sued for was not paid by the defendants. That is not enough. Unless something is due and owing to the County of Lawrence, a stranger to the proceeding cannot collect from these defendants in this action and a careful reading of the statement of claim is conclusive that there is no allegation that anything remains yet due and unpaid to the taxing authorities." While the first part of that quotation inferentially concedes the inadequacy of the affidavit in the respect indicated in this opinion, the second part of the quotation brings *370 up the only other matter considered in appellants' brief that we need refer to, and to that we now turn.
Defendants also contend that this suit will not lie in the name of the Commonwealth to the use of Horner, and in support of their contention, say, that under section 13 of the Act of March 21, 1806, 4 Sm. L. 326, this suit must be brought as specified in section 7 of the Act of 1851, supra. We think the suit is so brought. Section 7 provides that if the constable "fail to make settlement and payment ...... it shall be the duty of the treasurer of said county immediately to cause an action of debt [now assumpsit] in the name of the Commonwealth to be brought upon the bond of such constable." Appellants contend (in the words of their brief) that they can "be sued only by the county treasurer of Lawrence County" and not by an ex-county treasurer — the fact being that Horner's term of office had expired before this suit was brought. To reach that conclusion, it is necessary to read into the statute words that are not there and which, if inserted, alter the legislative intention plainly expressed. We cannot write into the act after the words "treasurer of said county" the words "at the time of bringing suit" because the pertinent sections of the act show that was not the legislative intention: Com. v. Gouger,
Moreover, it is probably a mistake to insist as appellants do, (we need not decide whether it is or not) that the statute requires that suit be brought to the use of the county treasurer. All that the statute requires is that the county treasurer shall "cause an action ...... in the name of this Commonwealth to be brought." There may be a question whether such suit should be brought to the use of any individual, or whether it should be brought to the use of the county involved, as was done in Com. to the use of Armstrong County v. Templeton, 3 Sadler 550 (1886); (Armstrong County appears then to have had a somewhat similar system of collecting delinquent taxes, March 24, 1873, P.L. 357; see Sec. 8: this act was repealed June 24, 1895, P.L. 239). The point is, however, immaterial generally and particularly in this suit; as defendants have pleaded on the merits, the record would be taken as amended here in any event: Com. to use v. Singer,
In the case at bar, appellants made no such defense; on the contrary, as the quotation from appellants' brief made above shows, the affidavit expressly avoids alleging that Houk, the collector, or his sureties, paid either to Horner as treasurer, or to the county: as to the suit to the use, see Com. v. Snyder,
Something is said on behalf of appellants to the effect that this bond was neither certified to the common pleas for purposes of suit, nor assigned to the use-plaintiff; neither was required: Berks Co. v. Levan, supra; Com. v. Snyder,
A suit to the use is equitable in its nature, and, when the obligation to the legal plaintiff is determined, a defendant may protect himself against payment to the wrong person by payment into court in accordance with familiar practice: Armstrong v. Lancaster, 5 W. 68; Guaranty Co. v. Powell,
Judgment affirmed.