Rand v. King

• Citation: 134 Pa. 641,19 A. 806
• Decision Date: 12 May 1890
• Docket Number: 131
• Parties: MARY A. RAND, ADMRX., v. A. D. KING
• Court: Pennsylvania Supreme Court

19 A. 806

134 Pa. 641

MARY A. RAND, ADMRX., v. A. D. KING

No. 131

Supreme Court of Pennsylvania

May 12, 1890

Argued April 15, 1890

APPEAL BY E. B. LONG, ADMR., FROM THE COURT OF COMMON PLEAS OF LUZERNE COUNTY.

No. 131 January Term 1890, Sup. Ct.; court below, No. 220 January Term 1887, C.P.

On November 27, 1876, judgment in default of an appearance by the defendant was entered for $1,117.75, in favor of Mary A Rand, administratrix of the estate of George W. Rand deceased, in an action of debt brought upon a note signed by the defendant. The attorney appearing of record for the plaintiff was Mr. Q. A. Gates. On October 25, 1881, the death of the defendant was suggested upon the record and Mr. Q. A Gates, who had become his administrator, was substituted as defendant. Upon the same day a writ of scire facias to revive the judgment was issued against Mr. Gates, administrator, etc., by Mr. Alexander Farnham as attorney for the plaintiff. The defendant in the scire facias pleaded payment, and by agreement the cause was referred to Mr. Nathan Bennett, as referee. On March 10, 1882, judgment was entered upon the report of the referee, in favor of the plaintiff, for $1,548.11. On December 16, 1887, a writ of scire facias upon the latter judgment was issued against Mr. Gates, administrator, etc., with notice to terre-tenants, to No. 220 January Term 1887, in the court below, and, after return thereof, judgment for the plaintiff in the sum of $2,023.64 was entered for want of an appearance by the defendant.

On November 3, 1888, the following entry was made upon the record at the number and term of the second revival:

"By virtue of a letter of attorney to me directed by the plaintiff, Mary A. Rand, (now Stearns,) I acknowledge satisfaction of the above stated judgment, debt, interest and costs.

"HENRY W. PALMER,

"Attorney in fact."

The power of attorney, by virtue of which this acknowledgment of satisfaction was made by Mr. Palmer, was executed by the plaintiff on October 25, 1888, before a notary public, and therein the plaintiff acknowledged receipt of the full amount of the debt, interest and costs of the judgment, and appointed "Alex. Farnham, or any other attorney of record in Luzerne county," her attorney in fact to enter satisfaction upon the record.

On November 5, 1888, Mr. Gates petitioned the court below to strike off the entry of satisfaction, averring by affidavit "that said judgment did not belong to Mary E. Stearns, nor to the estate of Geo. Rand; nor has it belonged to said estate for the last ten years; nor had the said Mary E. Stearns any right to satisfy the same; . . . . that great injustice will be done if said satisfaction is not stricken off at once; that said judgment belongs to the estate of Hon. W. W. Ketcham, deducting therefrom the fees and charges of petitioner, who was the attorney who brought the suit, and in whose charge said judgment has been." Thereupon the court granted a rule to show cause why the satisfaction should not be stricken off.

It did not appear from the docket entries printed in the paper-books, upon whom this rule was served. Depositions were taken under it on behalf of the petitioner and on behalf of E. B. Long, who had succeeded Mr. Gates as administrator of the estate of A. D. King, deceased. The petitioner testified, under objection, that the note upon which the original judgment was recovered, had been placed in the hands of Mr. W. W. Ketcham, now deceased, for collection, in connection with the settlement of the estate of George W. Rand, deceased; that Mr. Ketcham, having settled with and paid the creditors of said estate, upon the assumption that the note was an available asset, and having gone upon the bench as judge of the District Court of the United States, placed the note in the hands of the witness, saying that it now belonged to him, Mr. Ketcham, and that, upon succeeding in collecting it, the witness should have the half of it for so doing, and the witness subsequently entered the suit in which the original judgment was recovered. The depositions tended to show that the plaintiff did not receive payment of any part of the judgment at the time of signing the power of attorney to satisfy, or at any other time; that she did not know of the judgments recovered in her name, and was unaware even of the existence of the note, until she was informed of it by Long; that Long told her he was investigating to ascertain whether the note was paid or not, advised her to have nothing to do with Mr. Gates, who, he said, claimed to have bought the note from Mr. Ketcham and was endeavoring to collect the money; and that, at the request of Long, she signed the power to satisfy without having read it over, in consideration of a promise by Long that if anything was found to be due her he would pay it.

On November 18, 1889, after argument, the court, WOODWARD, J., without opinion filed, made the rule to show cause absolute; whereupon E. B. Long, administrator of A. D. King, deceased, took this appeal, assigning the order making said rule absolute, for error.

When the cause was called for argument in the Supreme Court, a motion to quash the appeal was filed, the grounds thereof appearing in the argument on behalf of the appellee.

The order of November 18, 1889, is therefore set aside.

Mr. H. W. Palmer and Mr. J. Vaughan Darling, for the appellant:

Mr. Gates was not a competent witness to anything that occurred before the death of King, nor a competent witness to show ownership of, or an interest in the note, either in himself or in the estate of Mr. Ketcham, as against the estate of George W. Rand: Act of May 23, 1887, P.L. 158. The power of attorney given by the plaintiff having been acted on, it is an executed contract and can be set aside only on proof of fraud, accident or mistake, of which there is not sufficient evidence: Kerr's App., 104 Pa. 282; Greenfield's Est., 14 Pa. 496; Penna. R. Co. v. Shay, 82 Pa. 198; Sylvius v. Kosek, 117 Pa. 67; Murray v. Railroad Co., 103 Pa. 37; Phillips v. Meily, 106 Pa. 536; Juniata B. Ass'n v. Hetzel, 103 Pa. 507.

Mr. Q. A. Gates (with him Mr. Alfred Darte), for the appellee:

1. We move to quash the writ for two reasons: First, no writ of error lies to review an order striking off the satisfaction of a judgment: Murphy v. Flood, 2 Gr. 411; McKinney v. Fritz, 2 W.N. 173; Holland v. White, 120 Pa. 228; Carlson's License, 127 Pa. 330; Re Weaver, 116 Pa. 225; Reed's App., 114 Pa. 452; Darby v. Sharon Hill, 112 Pa. 66; Bain v. Funk, 61 Pa. 185. Second, there being no bill of exceptions, this court has nothing before it for review: Yard v. Pancoast, 108 Pa. 384; Warsaw Tp. Poor D. v. Knox Tp. Poor D., 107 Pa. 301; Merkel v. Berks Co., 81* Pa. 505; Northumb. Co. Bank v. Eyer, 60 Pa. 436. A certiorari does not bring up the depositions.

2. The competency of Mr. Gates is immaterial upon the real question in the case, that of fraud in procuring the satisfaction from the plaintiff without paying a cent for it. Her power of attorney is no more than a receipt, which is open to correction: Shoemaker v. Stiles, 102 Pa. 549; Russell v. Church, 65 Pa. 9; Wharton on Contracts, § 938; Borlin v. Highberger, 104 Pa. 143; McGrann v. Railroad Co., 111 Pa. 171. The parol promise given for it is not enforceable against the appellant: Act of April 26, 1855, P.L. 308; nor against his decedent's estate: § 24, act of February 24, 1834, P.L. 77. Whether the legal plaintiff or her attorney is entitled to the money, is no concern of the defendant: Montgomery v. Cook, 6 W. 238; Hamilton v. Brown, 18 Pa. 87; Landmes ser's App., 126 Pa. 115; Stackhouse v. O'Hara, 14 Pa. 89.

Before STERRETT, GREEN, CLARK, WILLIAMS and McCOLLUM, JJ.

OPINION

JUSTICE WILLIAMS:

The contents of the paper-books, and the character of the oral suggestions made in this case, and some others at the present term, lead us to believe that it is desirable to call attention once more to the difference between the several modes of review in use in this state.

Prior to the act of May 9, 1889, there were three of these in common use, and the peculiar characteristics of each were well understood by the profession. That most generally employed was the writ of error, which lay against any final judgment in any court of record, and against such interlocutory and auxiliary orders as have been made reviewable upon it by statute. On this writ the judgment is reviewed with reference to alleged errors which are pointed out by exceptions taken to the action of the trial court at the time when the rulings are made, and as a general rule the power of the Supreme Court is limited to the questions so raised: Warsaw Tp. Poor D. v. Knox Tp. Poor D., 107 Pa. 301. In all equity cases, and those following the equity forms, an appeal from the decree complained of is the proper...