Sterrett v. Ramsay

2 Watts 91 | Pa. | 1833

The opinion of the Court was delivered by

Rogers, J.

An amendment will not be permitted so as to make an appeal for all the defendants, on parol, testimony that it was the intention to appeal for all. Hartman v. Stahl, 2 Penns. Rep. 223. In the case at bar, Sterrett Ramsay supposed he was appealing as well for his co-defendant as himself. This may be conceded, and it may also be granted that William Ramsay intended the appeal should be so entered. It still amounts to an intention not carried into effect; and nothing more; and is not stronger in principle than Hartman v. Stahl. There is nothing, except the parol testimony, which shows, either directly or by inference, that William Ramsay was dissatisfied with the award. If fraud, or a clear mistake on the part of the prothonotary or his clerk had been proved, a different case would be presented. Mr M’Coy, after testifying to the fact that William Ramsay requested him to become his security in an appeal which he intended to take, that he was going from home, and that Sterrett Ramsay would appeal for both, states that he does not recollect whether he read the recognizance or not, nor that any thing was said about the appeal being entered for both defendants. The clerk swears, that Sterrett Ramsay and Robert M’Coy came into the office, and that Ramsay told him he wanted to enter an appeal, but did not say he wanted to appeal for both defendants. He further says, that when a defendant wishes to enter an appeal for both defendants, it is the practice in the office so to enter it; and that if he had been directed to enter an appeal for both, he would have done so. In this he is supported by the prothonotary, who also deposes, that he drew the recognizance and affidavit at the instance of Sterrett Ramsay. That he would have drawn the recognizance and affidavit differently, had he been informed that both defendants intended to appeal. The mistake then, if any, was the mistake of Sterrett Ramsay. Nor is this contradicted by Sterrett Ramsay, who was examined as a witness. He does not undertake to say, that he informed either the prothonotary or his clerk that he had authority and intended to appeal for both defendants. All he recollects is, that he asked the clerk at the time, if the appeal as entered would do for both defendants, and was answered that it would. When it is recollected that no person remembers this but Sterrett Ramsay, one of the defendants, and that the evidence of the other witnesses is irreconcilable with this state of facts; the testimony is too loose and unsatisfactory to be the foundation of an amendment. No case of the kind can be shown; if amendments are permitted on such grounds, so as to meet the fancied justice of a particular case, a laxity of practice would be the consequence, very destructive to the rights and interest of suitors. The records will remain partly in parol, and partly in writing. It is impossible for the plaintiff to discover the secret intentions of the defendant. Resort must be had to the record, which shows an oath by one for himself alone, a recognizance by one, an appeal by one. Indeed, until this day, there is no oath that the appeal, so far as regards William Ramsay, was not entered for the purpose of delay. Sterrett Ramsay, swears, that in appealing he did not intend to delay the plaintiff, but he does not say what may have been the intention of William Ramsay. La Fitte v. La Fitte, 2 Serg. Rawle 107, only decides, that if one of several defendants make the affidavit required by the “ act regulating arbitrations,” for an appeal, and the recognizance be for all the defendants, the appeal will stand for all. One may make the affidavit, for he acts as the agent of his co-defendants ; but still the act requires an oath, not only in respect to his own intentions, but the intentions of the co-defendants. Such was the understanding of the court in Hartman «. Stahl, and no reason has been assigned for a change of opinion. But it is said, that the case' at bar is not the subject of a writ of error. That it is an application to the sound discretion of the court of common pleas, with which the supreme court cannot interfere. We are of a different opinion. A variety of cases, such as this, have been reviewed. If the court had stricken off the appeal, it would be in the power of the court to reinstate it on good cause shown. This is not denied; and even-handed justice requires a remedy when an appeal has been improperly sustained, subject to the restriction that a writ of error would not lie until final judgment. Without the parol testimony, the defendant in error has no case. It is plain, if we look to the record alone, no appeal was ever in fact entered for William Ramsay, whatever may have been the intention of the parties. The court" have a legal, not an arbitrary discretion, as has been repeatedly held. Clark v. Wallace is a case of this kind. A defendant, against whom an award of arbitration had been made, applied to the prothonotary on the twentieth day, after night and after the office was shut, to enter an appeal. The prothonotary refused to go to the office and' take the appeal. At the next court, a motion was made for an order, that an appeal might be then entered nunc pro tunc, which the court refused. On a writ of error, the decision was held to be erroneous. In Clark v. Wallace, all the facts appeared by parol, and* yet this circumstance was not supposed to vest such a discretion in the court of common pleas, as to prevent the supreme court from affording the party relief. It must be noted, that in the case cited it was the mistake of the officer. And when this is clearly proved, the court should be liberal in allowing amendment. But of this there should be something more certain than allegation or contradictory proof.

The plaintiffs issued a fieri facias to the August term 1825, against William Ramsay, pending the appeal entered by Sterrett Ramsay. This was clearly erroneous. Until the appeal is disposed of, no proceedings can be had against the co-defendant. In setting aside, therefore, the execution, the court were right; but we think they were in error in sustaining an appeal for William Ramsay.

Judgment reversed, and a venire de novo.