Perth Amboy Terra Cotta Co. v. Wood

| Pa. | Feb 25, 1889

Per Curiam :

Edward C. Wood, the appellee in the first of the above cases, and the defendant in error in the second, filed his petition in the court below, praying that the judgment in controversy be opened as to the Ardmore Wood Working Company and the petitioner, and that they be let into a defence. The court, however, did not opeu the judgment, but directed an issue to ascertain (a) whether Alfred H. Green and Edward C. Wood were copartners in the lumber business at the Ardmore Mill on October 8, 1886, at the time the judgment was confessed; and (5), if at that time such copartnership did exist, what, if anything, was due by said firm upon the judgment confessed to the Perth Amboy Terra Cotta Company; all proceedings on the judgment to stay in the meantime. The issue thus directed by the court was afterward tried, resulting in a verdict, under binding instructions from the court, that on October 8, 1886, a partnership existed between Alfred H. Green and Edward C. Wood, and that there was nothing due on the judgment. Judgment was entered on this verdict.

As the court below did not open the judgment, nor refuse to open it, it is manifest no appeal lies under the act of assembly. This point is expressly ruled by Appeal of the Jenkintown National Bank, ante, p. 337. An agreement was filed at bar, however, that the case should be considered as if the court had made a formal order opening it. We can therefore dispose of both the appeal, and the writ of error which, was taken to the trial of the issue.

This issue, it may be well to observe, was an issue framed merely to inform the conscience of the court upon the particular facts embraced within it, and is not to be measured by the strict rules applicable to an ordinary jury trial. The court might open or refuse to open the judgment, notwithstanding the verdict. The latter was not binding upon the conscience of the court. As, however, judgment was entered upon the verdict, we assume the finding of the jury was satisfactory, and must regard the judgment in question as set aside.. Nor do we see how any other result could have been properly arrived at. There was abundant evidence to show that Wood and Green were copartners in the Ardmore Wood Working Companjr. It follows that the judgment confessed by Green in his own name and in that of the “ Ardmore Wood Working Company,” hound no one but himself. It was a confession under seal, and under all the authorities could not bind either Wood or the Company. The assignments upon the writ of error are numeious and need not be discussed in detail. We find no tiring which requires a reversal.

The case is affirmed both upon the appeal and the writ of error.