61 Pa. 347 | Pa. | 1869
The opinion of the court was delivered, May 11th 1869, by
This was an action of debt, against the surviving obligors, upon a joint and several bond given to indemnify the plaintiff below, for levying upon and selling certain personal property on an execution directed to him as sheriff of Carbon county. After proof by the subscribing witness of the execution of the bond by all the obligors, with the exception of Jonathan Brock, whose name was signed thereto and seal affixed by O. H. Wheeler, as his authorized attorney, in the presence of the subscribing witness, the plaintiff below offered the bond in evidence without any proof of Wheeler’s authority to sign it for Brock, the defendant. Loew, plaintiff in error, objected to its admission, but the court overruled the objection, and admitted it in evidence, to which he excepted, and assigns here its admission as error. The variance between the date of the bond, and its date as declared on, arose, doubtless, from a slip of the pleader, and would have been corrected if the attention of the court and opposite counsel had been called to it at the time of the offer. As the declaration might have been amended so as to avoid the variance, we should be disposed to treat it as amended here, if there were no other objection to the admission of the bond. But it was clearly inadmissible for another reason. As the action was against the survi
In the express language of the act it is only “ where, by reason of there being too many persons included as plaintiffs or defendants by mistake “ that the court is authorized to permit an amendment by striking out from the suit such persons as plaintiffs or defendants as will prevent the cause being tried on the merits.” We think that the amendment was not warranted by the letter or spirit of the act. It struck from the special verdict that part of the finding upon which the defendants rested their defence. If the amendment was improperly allowed, it is clear from the authorities already cited that the plaintiff below was not entitled to a judgment on the special verdict, for the reason that it did not show a joint liability on the part of all the obligors included in the action, even if it had been sufficient in other respects. But whether the amendment was rightly allowed or not, no judgment could be properly entered on the verdict, either in favor of the plaintiff or defendant. It is radically and incurably defective in not finding the facts essential to the plaintiff’s right of recovery; and the omission is apparent on the face of the verdict. The bond upon which the suit was brought, as we have already said, was given to indemnify Francis Stocker, the plaintiff below, for levy
Judgment reversed, special verdict set aside, and a venire facias de novo awarded.