Myers v. Nell

84 Pa. 369, 1877 Pa. LEXIS 181

• Court: Supreme Court of Pennsylvania
• Decided: June 26, 1877
• Status: Published

Opinion

Mr. Justice Sterrett

delivered the opinion of the court,

Suit was originally brought against the three makers, on their joint note, payable to the order of the plaintiff. The summons was served on William Nell, the principal in the note, and judgment was entered against him by default for the full amount of the plaintiff’s claim. The two sureties were not served. The judgment against William was conclusive as to him, and while it remained unreversed he was not in a position to controvert his liability either as against the plaintiff or the sureties, in case they had discharged the debt and had been subrogated to the rights of the plaintiff. The plaintiff having failed to obtain satisfaction of his judgment against the principal, proceeded against the other two by an alias summons to August Term 1873, and a plumes to January Term 1874, which rvas served on the 26th December 1873. The defendants appeared and made defence that the note had been altered after its execution and without their knoAvledge or consent, by adding the Avords “with interest from date.”

The proceeding by alias and pluries summons was irregular. The Act of 1830 does not contemplate a continuance of the original suit against those on whom the original process has not been served. It provides that the judgment against those served “shall not be a bar to a recovery, in another suit, against the defendant or defendants not served with process.” The proceeding against Jacob and Henry is in the nature of an original suit by summons, instead of an alias summons. As was said by Mr. Justice Bell, in Wann v. Pattengale, 2 Harris 313, “ Suits brought under the Act of 1830 cannot be esteemed in the nature of secondary process under continuances of the original suit, for the reason that the statute contemplates a judgment in the first action before a second can be commenced.” The irregularity, however, is but slight and formal, and may be amended.

To meet the defence set up by the defendants, the plaintiff offered to show the circumstances under which the note was given; that it was the understanding of the parties that it should bear interest, and, when it was discovered that it Avas not so draAvn, the payee refused to accept it, and afterwards the words, “ AYith interest from date,” were added, with the full knowledge and consent of the defendants, and in this form it was returned to and accepted by the payee. The refusal of the court to receive evidence tending to prove these facts is assigned for error. We are of opinion that the evidence should have been received and submitted to the jury.

The claim of the plaintiff on the note as against William Nell, the principal, had been finally adjudicated; and if the evidence was sufficient to satisfy the jury that Jacob and Henry had both authorized the alteration, they were not in a position to complain. The plaintiff, under the additional count, was seeking to recover the face of the note with interest from its maturity, and the tendency of the evidence would have been to show that the additional words were not written by the plaintiff, nor by his direction, and that he accepted the note in satisfaction of the judgment for which it was given, under circumstances which induced him to believe that the alteration was made in good faith, with the knowledge and consent of all parties to be affected thereby. If this were so, he was entitled to recover at least the amount of the note as originally drawn.

Judgment reversed, and venire facias de novo awarded.