Hanhauser v. Pennsylvania & New England Railroad Co.
| Decision Date | 05 October 1908 |
| Docket Number | 74 |
| Citation | 71 A. 5,222 Pa. 244 |
| Parties | Hanhauser v. Pennsylvania & New England Railroad Company, Appellant (No. 2) |
| Court | Pennsylvania Supreme Court |
Argued March 26, 1908
Appeal, No. 74, Jan. T., 1908, by defendant, from order of C.P. No. 3, Phila. Co., March T., 1887, No. 147, making absolute rule for judgment for want of a sufficient affidavit of defense in case of George Hanhauser, Administrator of the Estate of James Clarke, deceased, v. Pennsylvania & New England Railroad Company. Reversed.
Scire facias to bring in terre-tenant.
Rule for judgment for want of a sufficient affidavit of defense.
The opinion of the Supreme Court states the case.
Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.
Judgment reversed and procedendo awarded.
Alex. Simpson, Jr., with him Wm. Y. C. Anderson and Wm. Jay Turner for appellant. -- Judgment cannot be entered against one summoned as terre-tenant, who denies that it has or ever has had property which was liable to be sold to pay that judgment: Chahoom v. Hollenback, 16 S. & R. 425; Buckby v. Sturtevant, 28 Pa.Super. 552; Colwell v. Easley, 83 Pa. 31; Hulett v. Mut. Life Ins. Co. 114 Pa. 142; Colborn v. Trimpey, 36 Pa. 463; Day v. Willy, 3 Brewster, 43; Kelley v. Place, 11 Pa. Dist. Rep. 608; Hart's App., 96 Pa. 355.
The judgment also is bad because the record fails to show that plaintiff is entitled to the protection provided by the resolution of 1843: Com. v. R.R. Co., 122 Pa. 306; Reed's App., 122 Pa. 565; Hart's App., 96 Pa. 355.
That our construction is correct is shown, moreover, by the practice in all the cases of claims under this resolution and act.
In Fox v. Seal, 89 U.S. 424; Tyrone & Clearfield Ry. Co. v. Jones, 79 Pa. 60; P.C. & St. L. Ry. Co. v. Marshall, 85 Pa. 187; Woods v. P.C. & St. L. Ry. Co., 99 Pa. 101.
Chester N. Farr, Jr., with him William C. Mayne and William A. Glasgow, Jr., for appellee. -- The defense that the terre-tenant holds no property bound by the lien of the original judgment, under the law, as it stands at present, in Pennsylvania, cannot be raised: Haskins v. Low, 17 Pa. 64; Mitchell v. Hamilton, 8 Pa. 486; Catlin v. Robinson, 2 Watts, 373; Colwell v. Easley, 83 Pa. 31; Taylor's App., 93 Pa. 21; Davis v. Michener, 106 Pa. 395; Hunter's App., 40 Pa. 194; Artman v. Giles, 155 Pa. 409; Darrach v. Darrach, Troubat & Haly's Pr. sec. 801; Dowling v. McGregor, 91 Pa. 410; Stroud's App., 109 Pa. 326.
Before MITCHELL, C.J., BROWN, MESTREZAT, POTTER and ELKIN, JJ.
On March 22, 1887, James Clarke, deceased, recovered judgment in the court below against the Pennsylvania & New England Railroad Company for $34,084. It is claimed by the appellee, his administrator, that this judgment comes within the protection of the resolution of January 21, 1843, P.L. 367, and the provisions of the supplement thereto of April 4, 1862, P.L. 235. There is some force in the position of appellant that, as the record fails to show that the judgment is within the protection of the resolution, it is not within the provisions of the supplement; but it is not necessary for us to now pass upon this question, for a single averment of the appellant in its affidavit of defense clearly stands in the way of appellee's right to a summary judgment against it as a terre-tenant. After the Clarke judgment had been obtained various writs of scire facias were issued on it to bring in other railroad companies as terre-tenants, and against them judgments were entered. On November 24, 1905, this sci. fa. was issued, with notice to the appellant as a terre-tenant. In its affidavit of defense, deemed insufficient by the court below for no reason given, the laconic order, if intended for an opinion, being simply, "Rule absolute for judgment for want of a sufficient affidavit of defense," the first averment is: "Said Lehigh and New England Railroad Company has never held and does not now hold any property, real or personal, which it derived either directly or indirectly from said defendant." A reason given in the supplemental affidavit of defense why judgment should not be entered is: "Because at the time of the issuance of said scire facias or at any time before or since, the Lehigh and New England Railroad Company did not own or hold or claim to own or hold and had not in its possession any real or personal estate that was ever owned or held by the Pennsylvania and New England Railroad Company, the above named defendant, or upon which the judgment recited in the said scire facias was a lien."
The resolution of 1843 provides: "It shall not be lawful for any company incorporated by the laws of this commonwealth and empowered to construct, make and manage any railroad, canal or other public internal improvement, while the debts and liabilities, or any part thereof incurred by the said company to contractors, laborers and workmen employed in the construction or repair of said improvement remain unpaid, to execute a general or partial assignment, conveyance, mortgage or other transfer, of the real or personal estate of the said company, so as to defeat, postpone, endanger or delay their said creditors, without the written assent of the said creditors first had and obtained; and any such assignment, conveyance, mortgage or transfer shall be deemed fraudulent, null and void, as against any such contractors, laborers and workmen, creditors as aforesaid." The supplement of 1862 is: "Whenever any incorporated company, subject to the...
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