Sykes v. Moscatelli

81 Pa. Super. 87, 1923 Pa. Super. LEXIS 21

• Court: Superior Court of Pennsylvania
• Decided: March 7, 1923
• Docket: Appeal, 25
• Status: Published

Opinion

Opinion by

Henderson, J.,

None of the assignments of error is in conformity to our rules and the appeal might be dismissed on that account. We have examined the appellant’s argument, however, and are not persuaded that the court below is in error in the respect complained of. The proceeding was begun in a case of assumpsit before a justice of the peace against three — only one, Sparany, the appellant, was served. None of the defendants appeared before the magistrate. Judgment was given against Sparany who appealed to the court of common pleas. The case was there tried without pleadings and a verdict was inadvertently entered against all of the defendants named. When this was brought to the attention of the court, the verdict was set aside as to the defendants not' served. The appellant now contends that the verdict cannot be sustained against him. The cases cited do not support the position of the appellant — they were actions brought against partners and the pleadings showed joint liability. The failure to enter an interlocutory judgment against a defendant served who did not appear was made the basis for a reversal in one of the cases and it was held that the verdict against three could not be sustained when the records showed that-only one had been served. The appellant’s case is on a different footing. The record does not show what the cause of action was. It may have been a valid claim against the appellant and not against the other defendants. The judgment was entered against Sparany only by the magistrate. The case was not tried as to the other defendants either in the magistrate’s court or in the common pleas. A sufficient reason is not shown therefore why the verdict should not stand as directed by the trial court.

The judgment is affirmed.