Wood v. Kerkeslager
| Decision Date | 28 March 1910 |
| Docket Number | 334 |
| Citation | 227 Pa. 536,76 A. 425 |
| Parties | Wood v. Kerkeslager, Appellant |
| Court | Pennsylvania Supreme Court |
Argued January 20, 1910
Appeal, No. 334, Jan. T., 1909, by defendants, from judgment of C.P. No. 5, Philadelphia Co., June T., 1908, No. 2,606 for want of sufficient affidavit of defense in case of William Wood and John P. Wood, trading as William Wood & Company v. Irvin C. Kerkeslager, Lewis Willey and Joseph M. Adams, Trustees in Bankruptcy of Alexander Crow, Jr., appellants. Affirmed.
Assumpsit arising out of an interpleader.
Rule for judgment for want of a sufficient affidavit of defense. Before RALSTON, J.
The facts appear in the opinion of the Supreme Court.
Error assigned was entry of judgment for want of a sufficient affidavit of defense.
The assignments of error are overruled and the judgment is affirmed.
James F. Campbell and W. W. Porter, of Porter, Foulkrod & McCullagh, and with them, Joseph L. Greenwald, for appellants. -- The assignment is void under the act of March 24, 1818, for want of recording, or enures to the benefit of all the creditors by virtue of the act of April 17, 1843: Watson v. Bagaley, 12 Pa. 164; Wallace & Krebs v. Wainwright, 87 Pa. 263; Johnson's App., 103 Pa. 373; Fox v. Curtis, 176 Pa. 52; Mann v. Wakefield, 179 Pa. 398; Huey v. Prince, 187 Pa. 151.
The act of June 4, 1901, with its repealing clauses, is suspended during the pendency of the federal bankruptcy act: Gas Co. v. Haskell, 172 Fed. Repr. 545; Potts v. Smith Mfg. Co., 25 Pa.Super. 206; Hull's Est., 10 Pa. Dist. Rep. 661; Dolhenty's Est., 11 Pa. Dist. Rep. 187; Boggs's Est., 11 Pa. Dist. Rep. 188; Cassel's Est., 13 Pa. Dist. Rep. 637; Ranck's Est., 14 Pa. Dist. Rep. 496; In re Assignment of Clark Electrode Co., 15 Pa. Dist. Rep. 64; Bank v. Gass, 29 Pa.Super. 125; McMullen's Petition, 26 Pa. C.C. Rep. 157; Johnson v. Crawford & Yothers, 154 Fed. Repr. 761; Ketcham v. McNamara, 72 Conn. 709 (40 A. Repr. 146).
John G. Johnson, with him W. B. Linn, for appellees. -- The assignment acts of 1818 and 1843 were expressly repealed by the Act of June 4, 1901, P.L. 404, a statute which is in force in Pennsylvania except when it actually conflicts with the bankrupt act in administration of an estate, and then the conflicting portions are not enforceable because of the federal statute, but the nonconflicting portions are always enforceable: Randolph v. Scruggs, 190 U.S. 533 (23 S.Ct. Repr. 710); Beck v. Parker, 65 Pa. 262; Mayer v. Hellman, 91 U.S. 496; Boese v. King, 108 U.S. 379 (2 S.Ct. Repr. 765); Steinruck's Insolvency, 225 Pa. 461; Hull's Est., 10 Pa. Dist. Rep. 661; Zacharias v. Paint, etc., Co., 11 Pa. Dist. Rep. 171; Lobach v. Riegel, 11 Pa. Dist. Rep. 533; Patty-Joiner v. Cummins, 57 S.W. Repr. 566; Reed v. McIntyre, 98 U.S. 507.
Before FELL, C.J., BROWN, MESTREZAT, POTTER, ELKIN, STEWART and MOSCHZISKER, JJ.
The original affidavit of defense in this case was held to be good by the court below, but, upon appeal, it was held to be insufficient: Wood v. Kerkeslager et al., 225 Pa. 296. Upon return of the record the plaintiffs moved for judgment. This motion was followed three days later by a supplemental affidavit of defense. A rule was thereupon again taken for judgment for want of a sufficient affidavit of defense, and, having been made absolute, we now have the appeal of the defendants.
It does not appear from the record that the supplemental affidavit of defense was filed by leave of court. Under the circumstances the appellants were not entitled to such leave, and, if asked for, it should have been refused. In holding that the original affidavit of defense was insufficient this court directed the record to be remitted and that judgment be entered for the plaintiffs unless "other legal or equitable cause be shown why such judgment should not be entered." These are the words of the Act of April 18, 1874, P.L. 64, under which we are authorized to direct judgment to be entered for want of a sufficient affidavit of defense upon an appeal from the refusal of the court below to enter it, but a reasonable construction is to be given to them. It surely was not intended by the legislature that if a defendant should succeed in satisfying the court below that his affidavit of defense was good, and, on appeal, it should be held to be insufficient, he should have the privilege of renewing his effort to defeat the plaintiff by filing another affidavit of defense on a matter which was known, or ought to have been known, to him when his original affidavit of defense was filed. If such license is to be given to a defendant, a plaintiff will succeed in obtaining judgment for want of a sufficient affidavit of defense only after the wit and ingenuity of client and counsel have been exhausted in setting forth new defenses after repeated reversals and directions by this court to enter judgment. If the court below should have regarded this supplemental affidavit of defense as good, and, on appeal, we should now hold differently and remit the record with the same order that was made on the first appeal, the plaintiffs might be confronted with a third affidavit of defense, regarded as good by the court below, and their case would become a mere shuttlecock between two judicial battledores. "Other legal or equitable cause" which a defendant may show to the court below why judgment should not be entered against him after the appellate court has held his affidavit of defense to be insufficient is a cause which did not exist when the affidavit of defense was filed, or, if it did exist, the defendant was ignorant of it through no fault of his own. A single illustration will suffice. A legal reason would be the death of the defendant after the appeal was taken, and an equitable reason for withholding judgment from the plaintiff and permitting an additional affidavit of defense to be filed would be the discovery of a material fact by the defendant during the pendency of the appeal from the refusal of the court below to enter judgment against him, just as after-discovered evidence is often sufficient to move the discretion of a court to grant a new trial to the defeated party. But no such situation is here presented. The defendants had their full day in court, and could have set up what they now allege is a good defense, but neglected to do so.
The disposition of a case on a statement and affidavit of defense is analogous to that of judgment by the court upon the whole record after a jury trial. Every allegation in the statement not denied in the affidavit of defense is to be regarded as an undisputed fact; and every averment in the affidavit of defense is to be taken as true. If from them it appears that no fact is to be found by a jury, the case is as ripe for judgment as it could be after submission to a jury under evidence disclosing nothing to be passed upon by them. After a jury trial and when the court is about to enter judgment upon the whole record non obstante veredicto its judgment is not to be...
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