Finch v. Lamberton
| Decision Date | 03 January 1870 |
| Citation | 62 Pa. 370 |
| Court | Pennsylvania Supreme Court |
| Parties | Finch <I>versus</I> Lamberton. |
Before THOMPSON, C. J., READ, AGNEW, SHARSWOOD and WILLIAMS, JJ.
Error to the Court of Common Pleas of Venango county: Of October and November Term 1868, No. 1.
A. Blakeley, for plaintiff in error.—As to the 1st error cited Beltzhoover v. Com., 1 Watts 126. As to 2d error, Bayard v. Hawk, 3 Penna. R. 174. As to 3d, 6th, 7th & 8th errors, Act of June 16th 1836, sects. 14, 16, 17, 18, Pamph. L. 719, Purd. 54, 55, pl. 21, 23, 24, 25; Kirk v. Eaton, 10 S. & R. 106. As to 9th error Frey v. Vanlear, 1 S. & R. 435.
J. D. Hancock, for defendant in error.—Referred to Act of 1836 supra. The only remedy under an award is by appeal: Barron v. Harriott, 2 Penna. R. 154; Orlady v. M'Namara, 9 Watts 192; Sullivan v. Weaver, 9 Barr 223; Royer v. Myers, 3 Harris 89; Waage v. Weiser, 5 Wharton 307; Thompson v. White, 4 S. & R. 140; Walls v. Wilson, 4 Casey 514; Sheets v. Rudebaugh, 2 Rawle 149; Gram's Appeal 4 Watts 43; Royer v. Myers, 3 Harris 89. Everything before arbitrators is presumed to be regularly done: Withers v. Haines, 2 Barr 435; Bemus v. Clark, 5 Casey 251; Browning v. McManus, 1 Wharton 177; Rogers v. Playford, 2 Jones 184; Brown v. Brashier, 2 Penna. R. 114; Stiles v. Carlisle and H. Turnpike, 10 S. &. R. 286.
The opinion of the court was delivered, January 3d 1870, by AGNEW, J.
There seems to be no good ground to set aside the proceedings in this case. As a general rule, in joint actions, the taking of a final judgment against one defendant is a bar to further proceeding in the same suit against the others; the act of accepting such a judgment being that of the plaintiff himself: Beltzhoover v. Com., 1 Watts 126; O'Neal v. O'Neal, 4 W. & S. 130; Noble's Administrator v. Laley, 14 Wright 281. But where judgment is rendered by default, and the prothonotary liquidates the sum without waiting for a trial and assessment for damages against the other, the liquidation being the act of the officer, is amendable by striking it out in the court below, or treating it as amended in this court: O'Neal v. O'Neal, supra; Weikel v. Long, 5 P. F. Smith 238. And even two judgments in the same case will now be treated as one on the scire facias, or execution. See Act 2d August 1842, Purd., 1861, p. 577, pl. 36 and 37.
The irregularities, complained of in the proceeding to arbitrate, are not now to be favored. The court below was applied to; and, having heard the objections now urged, discharged the rule. Every presumption is made in favor of the award, unless flagrant error appears in the record: Sheets v. Rudebaugh, 2 Rawle 149; Browning v. McManus, 1 Wharton 177; Sands v. Rolshouse, 3 Barr 456; Bemus v. Clark, 5 Casey 251; Withers v. Haines, 2 Barr 435; Taggart v. McGinn, 2 Harris 155; Vankirk v. McKee, 9 Barr 100; Whitehill v. Whitehill, 17 S. & R. 295; Rogers v. Playford, 2 Jones 184.
Here the party resided in the county and employed an attorney, who had notice of the proceeding, and accepted service of the rule, and an award was made and remained without appeal, or motion to the court for relief, for fourteen months, execution being suffered to go out in the meantime. Under these circumstances we must presume that the court below had proof that the return of the sheriff of a personal service of the rule to choose on Finch was true. Though such a rule is not directed to the sheriff, yet the practice for sheriffs to serve these rules is so general we must presume the court had satisfactory evidence of the service by the sheriff.
The record entry is not inconsistent with the fact that the prothonotary alone fixed the number of arbitrators, and the time and place of their meeting: Withers v. Haines, 2 Barr 437. We may well suppose, therefore, that the court below was satisfied that the introduction of the word "we" in the certificate, given by the prothonotary of the arbitrators chosen, and time and place of meeting, was a mere clerical mistake.
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