Hottenstein v. Haverly

• Decision Date: 04 April 1898
• Docket Number: 234
• Citation: 185 Pa. 305,39 A. 946
• Parties: W. J. Hottenstein v. A. C. Haverly
• Court: Pennsylvania Supreme Court

39 A. 946

185 Pa. 305

W. J. Hottenstein v. A. C. Haverly

No. 234

Supreme Court of Pennsylvania

April 4, 1898

Argued March 15, 1898

Appeal, No. 234, Jan. T., 1897, by plaintiff, from judgment of C.P. Sullivan Co., Sept. T., 1892, No 87, on verdict for defendant. Affirmed.

Issue to determine the validity of a judgment.

The facts appear by the opinion of the Supreme court.

Errors assigned among others were (1) in framing an issue, and in not discharging the rule to show cause why the judgment should not be marked satisfied of record; (2) in overruling the motion of plaintiff's counsel, which was as follows viz: "Counsel for William J. Hottenstein moves that the rule for an issue in this case be discharged, for the reason that the petition upon which it is founded does not set forth that the judgment has been paid. And second, that the evidence in the case for the rule is confined to that of Dr I. R. Park and it is flatly and squarely contradicted by William J. Hottenstein, the plaintiff in the judgment;" (3) in overruling the following motion of plaintiff's "Counsel for the plaintiff takes exception to the framing of the issue in this case, for the reason that the evidence is conflicting as shown by the deposition and answer of Mr. Hottenstein, the plaintiff, and that being the case, the act of 1876 does not apply, and we ask that the rule to satisfy the judgment be discharged;" (6) in submitting the case to the jury.

Judgment affirmed.

COUNSEL:

D. C. De Witt, with him J. G. Scouten, for appellant. -- The issue was improperly granted: Atkinson v. Harrison, 153 Pa. 472; Riddle's App., 104 Pa. 171; Horton v. Hopf, 4 W.N.C. 381; Bank v. Hunsicker, 8 Pa. C.C. 635.

An agreement of terms in contemplation of a written contract is not a perfect agreement upon which an action can be maintained. To produce this effect, it must be shown by the acts or declarations of the parties that they intended the agreement to be operative before execution, and without regard to the writing: Maitland v. Wilcox, 17 Pa. 231; 1 Beach on Contracts, 94; MacMackin & Young v. Timmins, 14 W.N.C. 318; Orr's App., 67 Pa. 195.

E. J. Mullen, for appellee. -- The authorities are clear that the court has the right to order an issue to determine whether or not a judgment has been paid or discharged: McCutcheon v. Allen, 96 Pa. 319; Salsberg v. Bartikoski, 6 Kulp, 235.

Before STERRETT, C.J., WILLIAMS, McCOLLUM, MITCHELL and FELL, JJ.

OPINION

MR. CHIEF JUSTICE STERRETT:

This proceeding was commenced by defendant's petition to the court below, setting forth certain facts, and praying for a rule on the plaintiff to show cause why the judgment therein specified should not be satisfied. The rule as prayed for was granted, and the matter was so proceeded in by taking testimony, etc., that on January 14, 1896, the court made the following order:

"After consideration of the evidence, it is ordered that the above judgment, No. 87, September term, 1892, be opened and the defendant is allowed to come in and defend. And an issue is formed wherein W. J. Hottenstein shall be plaintiff and A. C. Haverly defendant, to ascertain whether said judgment has been paid or not."

In due course, this issue came on for trial by jury, and in May 1896, a verdict in favor of the defendant was rendered, and afterwards judgment was...