Beck v. Germantown Cricket Club

• Decision Date: 03 March 1911
• Docket Number: 152-1910
• Citation: 45 Pa.Super. 358
• Parties: Beck v. Germantown Cricket Club
• Court: Pennsylvania Superior Court

45 Pa.Super. 358

Beck v. Germantown Cricket Club

No. 152-1910

Superior Court of Pennsylvania

March 3, 1911

Argued October 20, 1910

Appeal by Michael J. McEnery et al., from order of C.P. No. 2 Phila. Co.-1906, No. 4,910, discharging rule to strike off appellants' names as equitable plaintiffs in case of Alexander Beck and Mary Beck, his wife, v. Germantown Cricket Club.

Rule to show cause why the suggestion of appellants' names as equitable plaintiffs and the entry of judgment against them for costs should not be struck off.

The court discharged the rule.

Error assigned was order discharging the rule.

Reversed.

Edmund Randall, for appellants. -- It is clear that the Act of April 23, 1829, P. L. 355, gave the successful defendant in an action of tort no authority to make an assignee of an interest in a prospective verdict for unliquidated damages an equitable plaintiff, and so hold him for costs. Prior to and independently of the act of 1829 it was the practice of our courts to permit a successful defendant in an action of assumpsit to suggest of record the name of the equitable plaintiff and hold him for costs, but that was only in those cases where the person suggested was the real instigator of the action and prosecuted it for the exclusive benefit Armstrong v. Lancaster, 5 Watts, 68; Canby v. Ridgway, 1 Binney, 496; Utt v. Long, 6 W. & S. 174.

The assignment was a nullity, and afforded no authority for defendant's action: Sensenig v. Penna. R. R. Co., 229 Pa. 168.

Thomas Stokes and Bayard Henry, for appellee. -- The act of 1829 provides that the person at whose instance the action is prosecuted shall be liable for costs. Parties to a litigation, whether as attorneys or physicians, who accept an assignment of a claim, and take part in prosecuting the same, become liable for costs and are estopped from denying the validity of the assignment. They are persons at whose instance the case has been prosecuted: Armstrong v. Lancaster, 5 Watts, 68; Tomb's App., 9 Pa. 61; Gallagher v. Milligan, 3 Penrose & Watts, 177; Miller v. Lint, 36 Pa. 447; Gambers to use v. Robinson, 1 Pearson, 67.

Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.

OPINION

RICE, J.

The plaintiffs brought suit in trespass to recover damages for personal injuries to the wife alleged to have been caused by the defendant's negligence. The case was tried three times. The third trial resulted in a verdict followed by a judgment in favor of the wife for $ 2,250 and in favor of the husband for $ 100. On appeal the Supreme Court reversed the judgment and entered judgment for the defendant. After the return of the record to the common pleas the defendant filed in that court a paper suggesting the names of these appellants as equitable plaintiffs in the case, which suggestion was accompanied by the affidavit of the secretary of the defendant association to the effect that Mary Beck, by an assignment dated November 15, 1909, assigned all her right, title and interest in the verdict to these persons. The purpose of this suggestion was to prepare the way for issuing execution against them, under sec. 2 of the Act of April 23, 1829, P. L. 355, for the costs amounting to $ 339.23. Upon their application the court granted a rule to show cause why the suggestion of their names as equitable plaintiffs and the entry of judgment against them for costs should not be struck off, and from the order discharging the rule this appeal was taken.

It appears from the depositions submitted on the hearing of the rule, that the assignment was agreed to, immediately reduced to writing and executed after the jury had retired to deliberate and before they rendered their verdict, and, although absolute in form, was given and accepted merely as collateral security for the attorney fee of $ 500 theretofore agreed to be paid to one of the assignees for his services in the case, the bill of one of the other assignees, amounting to $ 100, for medical services, and the sum due Mary O'Hay, the other assignee, for money advanced and as compensation for taking care of the plaintiff for three years.

The legal question is, whether by taking the assignment under the circumstances stated the assignees became equitable plaintiffs and by that act alone made themselves liable for the costs. The act of 1829 is entitled, " A supplement to the act entitled, 'An act for the assigning of bonds specialties, and promissory notes.'" The Act of May 28, 1715, 1 Sm. L. 90, to which it is a supplement, relates exclusively to the assignment of " bonds, specialties and notes in writing," and the first section of the act of 1829 relates exclusively to " cases of equitable transfer or assignments of judgments, bonds, specialties and other...