Knights of Joseph Building & Loan Association v. Guarantee Trust & Safe Deposit Co.

• Decision Date: 02 March 1918
• Docket Number: 172-1917
• Parties: Knights of Joseph Building and Loan Association v. Guarantee Trust & Safe Deposit Co
• Court: Pennsylvania Superior Court

69 Pa.Super. 89

Knights of Joseph Building and Loan Association v. Guarantee Trust & Safe Deposit Co

No. 172-1917

Superior Court of Pennsylvania

March 2, 1918

Argued October 12, 1917

Appeal by the Sixth Nat. Bank, from judgment of Municipal Court Philadelphia Co.-1916, No. 559, on verdict for plaintiff in case of Knights of Joseph Building & Loan Assn. v. Guarantee Trust & Safe Deposit Co.

Trespass for failure to pay a check. Before Wheeler, J.

The facts are stated in the opinion of the Superior Court.

Verdict and judgment for plaintiff for $ 544.30. The Sixth National Bank appealed.

Error assigned was in giving binding instructions for plaintiff.

P. F Rothermel, 3d, with him John Dickey, Jr., for appellant. -- A bank is not liable in damages to its depositor for paying a check of the depositor in favor of a third person whose endorsement on said check is forged, where the fact of such forgery was unknown to the bank at the time of the payment of such check and at all times thereafter until notified of such fact by the depositor more than five weeks after the depositor had knowledge of such forgery: Myers v Southwestern Nat. Bank, 193 Pa. 1; Connors v. Old Forge Discount & Dep. Bank, 245 Pa. 97; Marks v. Anchor Savings Bank, 252 Pa. 304; McNeely Co. v. Bank of North America, 221 Pa. 588.

The Sixth National Bank had a right to prosecute this appeal: Fowler v. Borough of Jersey Shore, 17 Pa.Super. 366.

Leo Belmont, for appellee.

Before Orlady, P. J., Porter, Henderson, Head, Kephart, Trexler and Williams, JJ.

OPINION

TREXLER, J.

The plaintiff, the Knights of Joseph Building & Loan Association, through its proper officers on October 6, 1914, gave its check drawn on the Guarantee Trust & Safe Deposit Company to the order of B. Green. Keisler, the secretary of the association, forged the name of Green as endorser and secured the payment of the check, it having been forwarded through the Sixth National Bank which guaranteed the endorsement. The association was notified of the forgery February 24, 1915, but no notice of this fact was sent to the trust company until April 2, 1915. Appeal is taken by the Sixth National Bank which claims under the Act of May 22, 1722, to be a party aggrieved by the judgment.

(1) Has the bank a right to take this appeal? The language of the Act of May 22, 1722, Sec. 9, 1 Sm. Laws 138, is as follows: " That if any person or persons shall find him or themselves aggrieved with the judgment of any of the said courts . . . . it shall and may be lawful to and for the party or parties, so aggrieved, to have his or their writ or writs of error; which shall be granted them of course."

It is conceded that the bank was not a party to the suit in the court below and was notified to come in and defend but it did not appear. Thus it is concluded by the judgment as to all defenses set up in the action: Ayres v. Findley, 1 Pa. 501; Northumberland Co. Bank v. Eyer, 58 Pa. 97; Fowler v. Jersey Shore Borough, 17 Pa.Super. 366. In other words, if the judgment stands it will be required to pay it ultimately but if it be reversed it need pay nothing. Similar appeal statutes are found in many of the states and it has frequently been decided in other jurisdictions that it is not essential that appellant should be a party of record to the litigation in which the judgment is rendered or privy thereto. It is sufficient if he be aggrieved thereby: 2 Cyc 627, 633. The language of our statute includes any person who is injuriously affected by the judgment even if he has not appeared at the trial nor asked to intervene as a party. That the appellant is aggrieved by the judgment cannot be gainsaid and if that be admitted it would appear that his status under the act is definitely determined. A party aggrieved is one whose legal right is infringed and who by the decree complained of will suffer injury. If the trust company bring suit against the Sixth National Bank the latter would be bound by the judgment in this case, and could not deny the finding upon which it is necessarily founded, i. e., the endorsement was forged. It has...