Wissler v. Herr

• Decision Date: 11 July 1894
• Docket Number: 404
• Citation: 162 Pa. 552,29 A. 862
• Parties: F. H. Wissler, Appellant, v. Daniel Herr
• Court: Pennsylvania Supreme Court

29 A. 862

162 Pa. 552

F. H. Wissler, Appellant, v. Daniel Herr

No. 404

Supreme Court of Pennsylvania

July 11, 1894

Argued May 17, 1894

Appeal, No. 404, Jan. T., 1894, by plaintiff, from order of C.P. Lancaster Co., Oct. T., 1891, No. 70, discharging a rule for judgment for want of a sufficient affidavit of defence. Affirmed.

Rule for judgment for want of sufficient affidavit of defence in assumpsit on foreign judgment.

Plaintiff's statement contained the record of the judgment of the circuit court of Frederick county, Virginia, on which this suit was brought, showing that the suit in that state was brought by Levi Erb upon a general warranty contained in a deed executed by the defendant, Daniel Herr, asking, inter alia, "that ostensible liens existing at the date of your orator's purchase may be adjudged satisfied or not enforceable." To this bill all parties holding claims, or interested in them, that appeared to be liens, so far as known, or their personal representatives, and the holders of title from the time the liens were obtained, were made parties defendant. Subpoenas were issued, as prayed for in the bill, and were served personally on all who were residents of the state of Virginia, and by publication on H. J. Pritchard, Daniel Herr Joseph Eidson and Elizabeth Hibbs.

Several answers were filed, testimony was taken, and the case was referred to a master, who reported to the court, and the court, on June 22, 1888, adjudged, ordered and decreed that the judgment of Heironimus & Co., against Robert F. Massie and the trust given by H. J. Pritchard were liens, and ordered their payment. The court decreed that each vendee could recover from his vendor the amount he would have to pay, as the deeds from Herr down all contained a general warranty of the title and its being free from incumbrances, and that said covenants of warranty ran with the land. The decree was not to be operative for sixty days.

On Aug. 21, 1888, a day before the decree of June. 22, 1888, became operative, the record showed that Daniel Herr appeared in the circuit court of Frederick county, Virginia, and, through his attorney, J. P. Whitacre, filed a petition or bill in said court, setting forth: 1. That he was not and is not now a resident of Virginia. 2. That he was not served with process and did not appear in the cause. 3. Admitting that he was, at one time, the owner of the land in question. 4. That he is informed and so charges that none of the debts set forth in the decree of June, 1888, are liens, and if they ever were they have long since been discharged and should be so marked on record. 5. That if the debts were liens the land could not be held, as parties did not use due diligence in collecting the same. 6. That there could be no decree against petitioner. 7. That if the court was of a different opinion it was premature to decree against him until it was ascertained to whom debts were payable, and praying (1) that H. J. Pritchard et al. be made parties defendant to his bill and answer the same; (2) that all papers in suit of Erb v. Pritchard et al. be read in evidence in connection with his (Herr's) petition; (3) that the decree of June 22, 1888, be reheard, set aside and annulled; (4) that inquiry be made to see if debts in question are liens; (5) that parties be restrained from collecting debts, etc., until the respective rights of all parties have been ascertained and finally settled; (6) further and general relief, as may be just, equitable and right.

On Aug. 21, 1888, that court granted an injunction restraining the parties from collecting the debts as prayed for in the bill.

On the same day that Daniel Herr filed his bill, or afterwards, his attorney also filed exceptions to the master's report and to all the testimony that had been taken in the cause of Erb v. Pritchard et al.

Subpoenas were issued on Herr's bill, and served on the parties defendant. Answers were filed, the principal one of which denied most of the allegations in Herr's bill. The testimony of several witnesses was taken as to the merits of the matter in dispute and on May 18, 1890, the court filed a decree, refusing to rehear the decree of June Term, 1888, dismissing Herr's petition, dissolving the injunction granted Aug. 21, 1888, and decreeing that petitioner pay costs.

At June Term, 1891, under the caption of L. Erb v. Pritchard and others, and Daniel Herr v. L. Erb and others, the court, saying: "These causes came on finally to be heard together," decreed that it appearing that F. H. Wissler had paid certain debts which are in this decree declared to be liens on the real estate in question, Daniel Herr shall pay the same to said F. H. Wissler.

Plaintiff's statement contained the above records.

The affidavit of defence was as follows:

"1. The suit of Erb against Pritchard et al., referred to and set forth in plaintiff's statement, and upon the final decree in which action this present suit is founded, was instituted in the circuit court of Frederick county, Virginia, on or about Oct. 9, 1884; yet in fact and according to the record of said suit, he, the said Daniel Herr, was never served with personal process, nor had he any knowledge or notice, actual or constructive, of said suit before a definitive decree or judgment had been entered against him by default, and up to that time he was not represented in said suit in any manner whatsoever; and the said definitive decree or judgment, upon which the final decree on which this present action is founded is simply an affirmance, was obtained against him without his knowledge or appearance, and without any notice actual or constructive, of the beginning or progress of said suit.

"2. The said suit of Erb against Pritchard, in which the decree or judgment upon which this action is founded was obtained and entered, was, as your affiant believes and expects to be able to prove on the trial of this case, a fraudulent and collusive proceeding, not begun or defended in good faith to clear the title to the lands involved nor to indemnify other purchasers against losses suffered by the compulsory payment of liens thereon, but was a speculative proceeding, tainted with champerty, in that the alleged liens on the real estate, situated in Frederick county, on the lands at one time owned by the said Daniel Herr, and by him converyed to the said F. H. Wissler by general warranty deed, upon which warranty the said Herr was declared liable to the said F. H. Wissler, were founded upon certain stale claims, dating back to periods prior to the beginning of the War of the Rebellion in 1861, and that no such bond as is referred to in the trust deed, dated April 12, 1861, is in existence or was produced on the trial of the cause, nor is there any existing legal record, nor was any such record produced on the trial of the cause, as the judgment referred to as a judgment in the county court of Frederick in the name of Joseph Eidson and Henry J. Pritchard, and another judgment in the circuit court of Frederick county in the name of Elizabeth Hibbs; and that there were no persons in esse to receive, recover or prosecute said judgments and claims, or either of them, and that the said F. H. Wissler was not legally compelled, nor was he under any legal or moral obligation to pay said claims, but on the other hand and to the contrary, had a just and perfect legal defence to the same, but he neglected to defend the said real estate against them or to notify the said Daniel Herr and to give him an opportunity so to defend, as it was his duty as warrantee to do, and he fraudulently and with and for the purpose of aiding the said champerty, colluded and conspired with certain persons in the said proceedings, and suffered judgment to be decreed against him by default, to the end that the payment of said claims might ultimately be decreed against the said Daniel Herr, together with the costs thereof, including an exorbitant attorney fee of three hundred and fifty dollars ($350).

"3. The circuit court of Frederick county...