Melan v. Smith

• Decision Date: 12 May 1890
• Docket Number: 239
• Parties: H. J. MELAN, TO USE, v. WILLIAM SMITH
• Court: Pennsylvania Supreme Court

19 A. 738

134 Pa. 649

H. J. MELAN, TO USE, v. WILLIAM SMITH

No. 239

Supreme Court of Pennsylvania

May 12, 1890

Argued April 16, 1890

APPEAL BY USE PLAINTIFF FROM THE COURT OF COMMON PLEAS OF LUZERNE COUNTY.

No. 239 January Term 1890, Sup. Ct.; court below, No. 9 May Term 1886, C.P.

On March 1, 1886, there was entered in the court below a judgment by confession in favor of Henry J. Melan, against William Smith, for $745, with interest. On September 27 1889, there was filed an assignment thereof as follows:

"Now July 31, 1889, received in full the sum of eight hundred and twenty-seven and 98/100 dollars of Margaret Smith, for which I hereby assign, transfer and set over to her, the said Margaret Smith, all my right, title and interest in above judgment, debt, interest and costs.

"In presence of

"W H. HINES.

HENBY J. MELAN. [Seal.]"

By a paper dated November 18, and filed November 19, 1889, Margaret Smith assigned the judgment to M. J. Flannery. On the date last named, the defendant, averring by affidavit that the judgment had been paid in full with the affiant's own money, but that the plaintiff had assigned it to the wife of the affiant at her solicitation, prayed the court for a rule to show cause why the assignment should not be stricken off, and the judgment marked satisfied upon the record. Rule granted as prayed for.

By agreement of the parties, waiving a formal rule therefor, depositions were taken, to be read upon the hearing of the rule to show cause.

Henry J. Melan, the plaintiff, being called by the defendant, testified that the judgment had been paid to the witness in full, except a small balance which Mrs. Smith, the defendant's wife, agreed verbally at the time of the assignment to pay him; that some of the payments had been made by the defendant and some by Mrs. Smith; that receipts for the first four payments made were given in the defendant's name, and after that at the request of Mrs. Smith the receipts were drawn in her name, the last receipt for money as coming from the defendant being given in the spring of 1889; that no credits were placed upon the record, the witness expecting that the receipts would be produced when the parties came to make a settlement; and that the assignment to Mrs. Smith was given at the request of her attorney. The witness testified further, under objection, that after he had made the assignment, he went to Mrs. Smith's attorney, and told him that he did not want the assignment to be in the shape in which it was, but wanted it to be for the balance remaining unpaid, instead of for the whole judgment.

The defendant testified, under objection as to his competency, that, in addition to working as a miner, he kept a restaurant in his house for four years, his wife looking after the business during the hours when the witness was away at work; that she paid all the bills, but sometimes when she was busy she would tell the witness to pay them; and that all the payments to Melan were made with money of the witness. In his cross-examination he testified: "I have been to Mr. Melan's house twice to pay money. Once I was sent by my wife and once by myself. There may have been two or three payments made by me in my house that I made by my wife's direction, and three or four I made on my own account."

Mrs. Margaret Smith, being called for the plaintiff, and objected to as an incompetent witness to testify against her husband, testified as follows:

"Q. State whether you have been doing business in your own name in 1887 and 1888. A. Yes. In this house, corner Hazle and Miller streets. I was selling drinks, cigars, etc., and did my housework besides. My husband did no business for himself in 1887 and 1888, except to help himself to pocket money out of my earnings. None of the money paid since the 1st of January, 1887, until the judgment was paid, belonged to my husband. Some of the money I made working for Mr. Harvey. The rest I made selling drinks. . . . During the time I ran the business, my husband worked in the mines, and up to March, this year. I never had a license for the place. When it was licensed, it was licensed in my husband's name. The goods were shipped and the bills made out in his name. . . ."

Mrs. Smith and Flannery, her assignee, both testified that the latter paid her $600 for the assignment to him.

After argument the court, WOODWARD, J., made the rule absolute, filing the following opinion:

The assignment of this judgment by the plaintiff to the wife of the defendant cannot be sustained. Even her own testimony shows that all the money paid by her since 1887, to apply on the judgment, came from the unlicensed sale of liquor on premises owned and occupied by her husband, and for the sale of which the law could hold him criminally responsible. It was in no sense her sole and separate estate, and as such protected and assured to her by the act of 1887. The plaintiff admits that the judgment has been paid, or very nearly paid, and under all the evidence submitted to us it seems clear that, in contemplation of law, the money came from the husband, and not from the wife. It was the intention of the defendant when he made the payments to have them applied toward the satisfaction of the judgment; and the plaintiff had no legal right, without his consent, to change the appropriation of the money to his prejudice: See Jamison v. Collins, 83 Pa. 359; Martin v. Draher, 5 W. 544. Upon the whole case, and independently of the question of the wife's competency as a witness, we are of the opinion that neither of the assignments of this judgment was valid in law. It follows that upon payment of the balance, if any there is remaining due upon the judgment, with the costs accrued, the judgment should be satisfied of record. The rule is made absolute. See Felt v. Cook, 95 Pa. 247.

Thereupon the use plaintiff, having excepted to the order of the court, took this appeal, specifying that the court erred: In making absolute the rule to show cause.

And now, April 16, 1890, the order of the Court of Common Pleas of Luzerne county made on December 6, 1889, directing the prothonotary of said court to mark the judgment in favor op Melan, now to use of Flannery, against Smith, satisfied, is affirmed; and it is further ordered that said plaintiff, Henry J. Melan, pay all the costs incurred in the premises in said court. The costs of this appeal to be paid by the appellant.

Mr. W. H. Hines, for the appellant:

1. The power to direct a satisfaction conferred by the act of March 14, 1876, P.L. 7, is summary in its character, in derogation of the common law, in denial of trial by jury, and it must be limited to the express language of the act: Felt v. Cook, 95 Pa. 250. It is only when the testimony clearly shows that the defendant or his authorized agent has paid the judgment, and there is no contest over the fact, that the court can exercise the power. Upon the evidence in this case, it was the duty of the court to award an issue to determine the ownership of the judgment: Baxter v. Maxwell, 115 Pa. 469; Felt v. Cook, 95 Pa. 247; Horton v. Hopf, 4 W.N. 381. When there is a substantial dispute about the fact the court will not assume to decide it: Horton v. Hopf, supra; Saunders's App., 19 W.N. 507; Jackson v. Payne, 114 Pa. 67; Phillips v. Meily, 106 Pa. 536; Thorne v. Warfflein, 100 Pa. 519; Nicolls v. McDonald, 101 Pa. 514; North etc. Ry. Co. v. Swank, 105 Pa. 555; Martin v. Berens, 67 Pa. 459.

2. Upon the question of the wife's ownership of the moneys paid by her upon the judgment, counsel cited: Shuster v. Kaiser, 111 Pa. 215; Pier v. Siegel, 15 W.N. 480; Troxell v. Stockberger, 105 Pa. 405; Holcomb v. Bank, 92 Pa. 338; Burgan v. Cahoon, 1 Penny. 320; Breslin v. Boyle, 15 Phila. 208; Spering v. Laughlin, 113 Pa. 209; Berger v. Clark, 79 Pa. 340; Kepler v. Davis, 80 Pa. 153; Brown v. Pendleton, 60 Pa. 419; Silveus v. Porter, 74 Pa. 448; Wieman v. Anderson, 42 Pa. 311; Bucher v. Ream, 68 Pa. 421; Seeds v. Kahler, 76 Pa. 362; Rush v. Vought, 55 Pa. 437; Welch v. Kline, 57 Pa. 428; Kutz's App., 40 Pa. 95. As to the right of the wife to take an assignment of the judgment against her husband: Rogers v. Fales, 5 Pa. 157; Rose v. Latshaw, 90 Pa. 238; Spering v. Laughlin, 113 Pa. 209; Shea v. Maloney, 52 Conn. 327; Carlton v. Carlton, 72 Me. 115; Zurn v. Noedel, 113 Pa. 336; Bovard v. Kettering, 101 Pa. 181; Benson v. Maxwell, 105 Pa. 277; Benedict v. Driggs, 34 Hun 94; Wingerd v. Fallon, 95 Pa. 184; Kincade v. Cunningham, 118 Pa. 507.

3. The main question in the case is whether the husband and wife can testify against each other. A wife may file a bill in equity against her husband: Brightly's Eq., 521; Daniel's Ch. Pr., 142. It follows that she can be a witness against him in matters concerning her separate earnings Gleghorne v. Gleghorne, 118 Pa. 395. The rule of exclusion does not embrace ordinary business transactions, but is restricted to cases where there would be abuse of some domestic...