141 Pa. 426 | Pa. | 1891
Opinion,
If we treat this case as a rule in the court below to open the judgment, we would be compelled to quash the appeal. It was confessed in an adverse proceeding, and the opening of such a judgment is in the discretion of the court below. It is only where the judgment is entered upon a warrant of attorney or judgment note, that the act of assembly gives the right to an appeal from a refusal to open it. The case was argued at bar, however, as though the rule was to strike off the judgment, and, as that was the prayer of the petition upon which the rule was granted, we will treat it as such.
The suit was brought against the township of Jackson, appellant, upon a warrant or order drawn by the supervisors in favor of the plaintiff, upon the treasurer of the' township, for the sum of $600, and is expressed upon its face to be “ on account of borrowed money.” The writ having been served upon the supervisors, they appeared and confessed judgment for the amount of the claim. Subsequently, one Henry Antis, a taxpayer of the township, presented his petition to the court below, asking to have the judgment stricken from the record for the reason that the supervisors had no authority to give said order, or to borrow the money which it is alleged to represent. The prayer of the petition is that “ said judgment be stricken off, so that the said township of Jackson, through your petitioner, may come in to defend against the said claim,” etc.
The allegation that a suit cannot be sustained upon a township order is a technicality. The township is as much protected by the judgment as though the plaintiff had brought suit upon the original indebtedness, and had offered the order merely as evidence of the debt. It has been said in some cases that an action does not lie on such paper; that it is neither a bill, note, check, nor contract, nor is it a satisfaction of the original indebtedness: Dyer v. Covington Tp., 19 Pa. 200; Allison v. Juniata Co., 50 Pa. 351. In each of those cases, however, the point decided was that interest could not be recovered upon such warrants. It has been expressly held that they are not negotiable, and that suit cannot be brought in the name of a subsequent holder thereof: First N. Bank v. Rush School Dist., 81* Pa. 307; Snyder Tp. v. Bovaird, 122 Pa. 442. I do not propose to discuss this question, however. It might have been a troublesome one had it been raised by the township, but this petitioner has no standing to raise technicalities, which do not go to the merits.
That supervisors have no general power to borrow money is conceded. Nor have they any implied power to do so, except when its exercise is necessary to enable them to perform their duties. They have no authority to borrow money for the ordinary repair of roads, but they may do so upon an extraordinary emergency, as where bridges are destroyed, and roads
This money appears to have been borrowed by the supervisors in good faith, to repair the roads and bridges injured or destroyed by the flood of 1889. This was a lawful purpose; and as there is no specific act of fraud charged, wo are of opinion the township is bound to repay the holder of this order the money he advanced. The right being established, the form of the transaction does not concern the petitioner.
Judgment affirmed.
On April 27, 1891, a motion for a re-argument was refused.