Finch v. Lamberton, 62 Pa. 370

Finch v. Lamberton

62 Pa. 370 | Pa. | 1870

The opinion of the court was delivered,

by Agnew, J.

There seems to be no good ground to set aside the proceedings in this case. As a general rule, in joint actions, the taking of a final judgment against one defendant is a bar to further proceeding in the same suit against the others; the act of accepting such a judgment being that of the plaintiff himself: Beltz*373hoover v. Com., 1 Watts 126; O’Neal v. O’Neal, 4 W. & S. 130; Noble’s Administrator v. Laley, 14 Wright 281. But where judgment is rendered by default, and the prothonotary liquidates the sum without waiting for a trial and assessment for damages against the other, the liquidation being the act of the officer, is amendable by striking it out in the court below, or treating it. as amended in this court: O’Neal v. O’Neal, supra; Weikel v. Long, 5 P. F. Smith 238. And even two judgments in the same case will now be treated as one on the scire facias, or execution. See Act 2d August 1842, Purd., 1861, p. 577, pl. 36 and 37.

The irregularities, complained of in the proceeding to arbitrate, are not now to be favored. The court below was applied to; and, having heard the objections now urged, discharged the rule. Every presumption is made in favor of the award, unless flagrant error appears in the record: Sheets v. Rudebaugh, 2 Rawle 149; Browning v. McManus, 1 Wharton 177; Sands v. Rolshouse, 3 Barr 456; Bemus v. Clark, 5 Casey 251; Withers v. Haines, 2 Barr 435; Taggart v. McGinn, 2 Harris 155; Vankirk v. McKee, 9 Barr 100; Whitehill v. Whitehill, 17 S. & R. 295; Rogers v. Playford, 2 Jones 184.

Here the party resided in the county and employed an attorney, who had notice of the proceeding, and accepted service of the rule, and an award was made and remained without appeal, or motion to the court for relief, for fourteen months,’execution being suffered to go out in the meantime. Under these circumstances we must presume that the court below had proof that the return of the sheriff of a personal service of the rule to choose on Finch was true. Though such a rule is not directed to the sheriff, yet the practice for sheriffs to serve these rules is so general we must presume the court had satisfactory evidence of the service by the sheriff.

The record entry is not inconsistent with the fact that the prothonotary alone fixed the number of arbitrators, and the time and place of their meeting: Withers v. Haines, 2 Barr 437. We may well suppose, therefore, that the court below was satisfied that the introduction of the word “ we” in the certificate, given by the prothonotary of the arbitrators chosen, and time and place of meeting, was a mere clerical mistake.

The most material error alleged is the 6th. There is no ioubt that under the Act of 16th June 1836, § 16, Purd. 54, pl. 23, the service of the rule containing the names of the arbitrators,1 &c., must be made on the party himself, where he resides in the county, and not on his attorney: Henry v. Norwood, 4 Watts 347. The attorney in this case accepted service of the rule for the defendant. It is unnecessary to decide now that this acceptance is binding, the service being required to be upon the party himself; yet, we are justified in believing, after the hearing in *374the court below and discharge of the rule, and the admission of the party in his affidavit that he had employed the attorney, that the court below had evidence to satisfy them that the defendant had authorized his attorney to accept the rule for him, and, if for no other reason, that he might save the costs : Whitehill v. Whitehill, 17 S. & R. 295.

In regard to the service on the arbitrators, a sufficient presumption appears from the record itself. Connolly attended the first meeting and Epley the second, to which an adjournment was regularly made. Connolly having appeared at the first and being absent at the second, the arbitrators present at the second, Epley being one, had sufficient evidence from the endorsement on the rule, of Connolly’s appearance, that service had been made upon him. They were, therefore, justified in supplying his place with another arbitrator.

Finding no substantial error in the record the judgment is affirmed.