14 Pa. Super. 125 | Pa. Super. Ct. | 1900
Opinion by
This was an action upon a joint promissory note executed by Adam Braunreuter and Elise his wife. Adam died in August, 1895. Afterwards Elise pleaded the general issue and coverture and on the trial of that issue verdict was rendered against her. On appeal the judgment was reversed because the court had erroneously refused to let her testify: Strause v. Braunreuter, 4 Pa. Superior Ct. 263. After the return of the record to the court below, the plaintiff suggested the death of Adam and issued a scire facias to his administrator to show cause why he should not be made a party defendant. The administrator filed an answer in which he objected to being made a party, because, (1) “ the parties thereto would not be similar to those in the case in which a venire facias de novo was awarded; (2) the purpose of the plaintiff in making him a party was to make Elise Braunreuter an incompetent witness ; (3) he had no defense to the action.” “ Literally and strictly, upon the death of a party to the record, jointly sued with others, the further progress of the action against his estate is the same as if he had been sued separately. A liberal construction of the statute” (Act of March 22, 1861, P. L. 186) “permits the plaintiff to bring in the executor or administrator, and proceed against him and the survivor at the same time to judgment:” Ash v. Guie, 97 Pa. 493; Dingman v. Amsink, 77 Pa. 114; Githers v. Clarke, 158 Pa. 616. We are of opinion, therefore, that none of the objections set up in the administrator’s answer was sufficient to prevent the plaintiff from bringing him in and making him a party to the action. But be accompanied this answer with a paper in which he appeared, quoting therefrom, “ to the scire facias to show cause why he should not be made a party defend
Was the defendant, Elise Braunreuter, harmed by the ruling complained of ? She certainly was, if she would have been a competent witness upon the trial of the issue as made by the pleadings and was rendered incompetent by the swearing of the jury as if the administrator was a party to the issue. It is to be observed, that, from the outset of the proceedings to make him a party, the administrator contended that Elsie Braunreuter was a surety on the note in suit; therefore, though her testimony might avail to prevent judgment against her it could not affect any right of the deceased party which had passed to his administrator or to the plaintiff. Again, the testimony she offered to give could in no way affect the plaintiff’s judgment against the administrator. Her defense was personal to herself. If the jury had been sworn to try the issue joined between the plaintiff and Elise Braunreuter and had rendered a verdict in her favor, still the confession would have been unaffected, and after liquidation, which involved only a calculation of interest, the plaintiff would have had a judgment for the full amount of his claim. In the issue joined “ the subject in controversy, ” the “ thing or contract in action ” was the contract liability of Elise Braunreuter. No right of Adam Braunreuter, the deceased party to the note, was involved, directly or indirectly. She had no interest adverse to any such right which had passed to the plaintiff, and in view of the confession of judgment by the administrator and his solemn admission of record in connection therewith, she had no interest adverse to any right of the deceased party to the note which had passed to the administrator. Under these circumstances we think she was a competent witness in the issue joined. See Bank v. Henning, 171 Pa. 399, Trymby v. Andress, 175 Pa. 6, and Rine v. Hall, 187 Pa. 264.
There was error in swearing the jury generally, as if the administrator was a party to the issue joined, and in excluding the defendant as a witness. For these reasons the case must be sent back for a retrial.
The judgment is reversed and a venire facias de novo awarded.