Hatch v. Stitt

• Decision Date: 03 January 1871
• Parties: Hatch <I>versus</I> Stitt.
• Court: Pennsylvania Supreme Court

Page 264

66 Pa. 264

Hatch versus Stitt.

Supreme Court of Pennsylvania.

October 24, 1870.

January 3, 1871.

October 24th 1870.

Before THOMPSON, C. J., READ, AGNEW, SHARSWOOD and WILLIAMS, JJ.

Error to the Court of Common Pleas of Armstrong county: No. 27, to October and November Term 1869 E. S. Golden (with whom was J. B. Neale), for plaintiff in error. —This procedure deprived Hatch of an opportunity for trial in due course of law to which he is entitled: Campbell v. Kent, 3 Penna. R. 77; Brown v. Hummell, 6 Barr 91. Zuver could not confess judgment to bind Hatch personally: Collyer on Partn., § 462; Harper v. Fox, 7 W. & S. 142; Bitzer v. Shunk, 1 Id. 340; Cash v. Tozer, Id. 519; York Bank's Appeal, 12 Casey 458. An unauthorized appearance for a party not served does not bind him: Shelton v. Tiffin, 6 How. 163; Kimmel v. Kimmel, 5 S. & R. 294; Lyon v. Waldron, 13 Id. 165; King v. Bank of Gettysburg, 2 Rawle 198, and Compher v. Anawalt, 2 Watts 461. The appearance bound only the party declared against: Eardman v. Stahlnecker, 12 S. & R. 326; Blackwell v. Cameron, 10 Wright 236.

J. Boggs, for defendant in error, cited King v. Bank of Gettysburg, 2 Rawle 198. An appearance for all the defendants and a confession of judgment is a waiver, and is conclusive: Cyphert v. McCune, 10 Harris 195; Schober v. Mather, 12 Wright 22; Zion's Church v. St. Peter's Church, 5 W. & S. 217; Whitcombe v. Kephart, 11 Wright 89; Wilson v. Young, 9 Barr 101; Downing v. Lindsay, 2 Barr 282; Mosher v. Small, 5 Id. 221.

The opinion of the court was delivered, January 3d 1871, by READ, J.

The suit as it was brought and stood upon the docket below, was "Samuel Stitt v. Joseph Zuver and D. P. Hatch, copartners and owners of Steamer Home."

In Jackson v. Stewart, 6 Johns. R. 37, the court said "the attempt of the defendant to question the authority of the attorney for the plaintiff, in bringing the suit, was also unavailing. It is the course of the K. B., said Ch. J. Holt, 1 Salk. 86, when an attorney takes upon himself to appear, to look no further, but to proceed as if the attorney had sufficient authority, and to leave the party to his action against him."

In Williams v. Noyes, 6 Johns. R. 296, an attorney of the court appeared for a defendant against whom a writ had been issued, but not served, and, without authority from the defendant, confessed a judgment in vacation. The judgment was held regular. "The mere fact of his appearance," said Ch. J. Kent, "is always deemed enough for the opposite party and for the court."

In McCullough v. Guetner, 1 Binney 214, the summons was issued against two McCulloughs, and it was returned served as to George, and nihil habet as to Robert. Mr. Irvine, an attorney, entered his name on the docket without restriction, opposite to the names of the defendants, and he afterwards signed as their attorney, an agreement in which the action was entitled against both defendants, and which referred to certain persons, all matters in dispute in the above cause. The referees awarded in favor of the plaintiff, and judgment was entered upon the award. The court said, "the judgment below must be affirmed, because it sufficiently appears that the attorney appeared for both defendants."

So in Scott & Combes v. Israel, 2 Binney 145, the error assigned was that one of the defendants, Combes, had not been summoned, and in fact never appeared or pleaded, but Armstrong, an attorney of the Common Pleas, entered his name on the docket opposite the names of both defendants, and put in the plea of property in the short way.

The court said, "We have no doubt in this case. The attorney having marked his name generally, and in no part of the record having declared that he appeared for one in particular, must be presumed to have appeared for both, and the plea entered in this short way, must be referred to the appearance, and be considered as a plea for both. As to the defendant's being summoned, it is not material, he may appear without summons."

In Flanigan v. The City of Philadelphia, 1 P. F. Smith 491, the amicable action and confession of judgment were signed only by the counsel of the plaintiff and the counsel of the defendant. Judge Agnew said, "the amicable action and confession of judgment, is according to ancient and established practice existing before the Act of 1806, as well as since, and recognised in Cook v. Gilbert, 8 S. & R. 567, and McCalmont v. Peters, 13 Id. 196."

In Bunce v. Wightman, 5 Casey 335, it was held after a judgment has been entered by confession, an application to open it, is to be determined by the court below on a view of the evidence exhibited on the hearing, and "that the decision of the court of original jurisdiction, upon an application to open one of its own judgments, is not the subject of review on a writ of error." The same doctrine is enunciated in Henry v. Brothers, 12 Wright 70, and in Riegel v. Wilson, 10 P. F. Smith 388-394. The return of the sheriff was "8th August 1864 served on Joseph Zuver personally, as to D. P. Hatch, not found in my bailiwick." On the 15th August a narr. was filed, Joseph Zuver interpleaded with D. P. Hatch, &c., with a bill of particulars for "two months' work and labor on steamer Home for defendants," &c.

On the 28th October, judgment for want of an affidavit of defence against the defendant Joseph Zuver, for $203.48 and costs. 1st December 1864, affidavit of defence filed by Joseph Zuver, December 5th 1864, defendant Joseph Zuver, by his attorneys Barclay & Smullen, moves the court to take off the judgment, entered for want of an affidavit of defence, which, on the 20th December, was made absolute. The copy of the motion as filed of record is, "the defendant by his attorneys, moves the court for rule to show cause why the judgment in said case should not be stricken off. Barclay & Smullen, attorneys for defendants."

The...