Unangst v. Goodyear Co.
| Decision Date | 23 May 1891 |
| Citation | 141 Pa. 127 |
| Parties | E. P. UNANGST v. GOODYEAR ETC. MFG. CO. |
| Court | Pennsylvania Supreme Court |
Before PAXSON, C. J., STERRETT, GREEN, CLARK and WILLIAMS, JJ.
APPEAL BY DEFENDANT FROM THE COURT OF COMMON PLEAS OF NORTHAMPTON COUNTY.
No. 119 January Term 1890, Sup. Ct.; court below, No. 15 April Term 1889, C. P.
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Mr. Robert L. Cope, for the appellant:
Counsel cited: (1) Clark v. Douglass, 62 Pa. 408; Howard Exp. Co. v. Wile, 64 Pa. 201; Railroad Co. v. Stout, 17 Wall. 657; Redfield Mfg. Co. v. Dysart, 62 Pa. 62; Graham v. Smith, 25 Pa. 323; Twitchell v. McMurtrie, 77 Pa. 383; Madara v. Eversole, 62 Pa. 160. (2) Cowden v. Reynolds, 12 S. & R. 281; Starkie on Ev., 247. (3) Lowe v. Dalrymple, 117 Pa. 564; Deakers v. Temple, 41 Pa. 234; Brinks v. Heise, 84 Pa. 246; Kichline v. Lobach, 125 Pa. 295. (4) Clark v. Douglass, supra; Bumm v. Ahl, 29 Pa. 387.
Mr. J. B. Kemerer, for the appellee.
Counsel cited: Hyatt v. Johnston, 91 Pa. 196; Howard Exp. Co. v. Wile, 64 Pa. 201; Raby v. Cell, 85 Pa. 80; Hazelett v. Ford, 10 W. 101; Yaple v. Titus, 41 Pa. 195; Meckley's App., 102 Pa. 536; Second N. Bank's App., 85 Pa. 528; Sheetz v. Hanbest, 81 Pa. 100; Bear's Est., 60 Pa. 430; Shoemaker v. Kunkle, 5 W. 107; Mead v. Conroe, 113 Pa. 220; Morton v. Weaver, 99 Pa. 47.
The judgment was affirmed on March 24, 1890, by an order per CURIAM. On April 10, 1890, on motion, a re-argument was ordered; and on March 9, 1891, the cause was re-argued orally by Mr. Harry C. Cope, for the appellant, and by Mr. J. B. Kemerer, for the appellee, before a full bench.
This case was heard at the last term in the Eastern District, and the judgment affirmed. A re-argument was granted, and it was heard again at the present term. We are not convinced that our former judgment was erroneous.
The case below was a feigned issue to try the validity of a judgment confessed by J. B. Uberroth in favor of Eugene P. Unangst, for $7,000. The allegation of the appellant was that the judgment had been given to hinder and delay the creditors of Uberroth. Upon the trial below, the defendant called the latter as a witness as upon cross-examination, and he was asked as to a conversation with a person named Van Court. The court excluded the evidence, and this forms the subject of the second assignment of error. The questions were objected to as incompetent, irrelevant, and res inter alios acta. We think the objection well taken. Granted, for the sake of the argument, that Uberroth was a knave, and that his purpose was to cheat his creditors, his declarations would not be evidence to defeat the judgment he had given to Unangst, without previous proof that the latter was a party to the fraud. There was no such proof in the case.
Nor was the defendant entitled to examine Uberroth as upon cross-examination. He was not a party to the issue, and was a competent witness. Moreover, he was testifying against his interest, in a legal sense.
We do not think the court erred in excluding the testimony referred to in the third assignment. It rests upon the same principle as the testimony of Uberroth, above referred to. It consisted entirely of his declarations, not made in the presence of the plaintiff. From the bill of exceptions we learn: "This question is offered as a declaration of Mr. Uberroth, who is alleged to have been in collusion with the plaintiff, for the purpose of defrauding Mr. Uberroth's creditors." Unfortunately for the offer, it was a mere allegation, wholly unsupported by proof that the plaintiff was in collusion with Uberroth for the purpose of cheating the creditors of the latter.
The first assignment alleges that the court erred in affirming the plaintiff's third point; the fourth assignment, that the court erred in not affirming the defendant's point. The effect of both rulings was the same, to withdraw the case from the jury in favor of the plaintiff. In this the court was clearly right. There was not a scintilla of evidence to show any fraud on the part of the plaintiff. The defendant obtained this issue for the purpose of showing that the judgment was fraudulent. The plaintiff had a right to rest upon his judgment until the fraud was shown, a fraud to which he was a party. He did not rest upon it, however. He proceeded to...
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...between Adam and Henry Haas: McElfatrick v. Hicks, 21 Pa. 406; Stewart v. Fenner, 81 Pa. 177; Tisch v. Utz, 142 Pa. 186; Unangst v. Goodyear, 141 Pa. 127. was no evidence to show collusion or fraud in the purchase of this property. On the contrary there was clear and explicit evidence that ......
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