Van Cott v. Webb-Miller

Superior Court of Pennsylvania

Van Cott v. Webb-Miller

25 Pa. Super. 51, 1904 Pa. Super. LEXIS 12

CourtSuperior Court of Pennsylvania

DecidedApril 18, 1904

DocketAppeal, No. 11

StatusPublished

This text of 25 Pa. Super. 51 (Van Cott v. Webb-Miller) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Van Cott v. Webb-Miller, 25 Pa. Super. 51, 1904 Pa. Super. LEXIS 12 (Pa. Ct. App. 1904).

Pincite

Opinion

Opinion by

Beavee., J.,

Assuming, for present purposes, that the plaintiff seeks to charge Norman Miller, the husband of Mrs. J. M. Webb-Miller, as a partner, the affidavit made by the latter, which goes to the merits of the claim, should, if sufficient in itself, prevent judgment against the partnership or either member of it. It is true that the affidavit is made by Mrs. Miller on her own behalf but it is based upon grounds which tend to negative any liability by anyone and, in addition, there is an implied denial of the husband’s partnership, inasmuch as he is expressly named as her business manager. If, therefore, the affidavit is good as far as she is concerned, it would seem to be good so far as the partnership is concerned.

If the ground of recovery against Norman Miller is other than as a partner, the declaration is insufficient to charge him with [54]*54any liability. In any view of the case, therefore, from the standpoint of the pleadings, the court was clearly justified in opening the judgment.

If the action of the court had depended entirely upon the failure to file an affidavit of defense under the circumstances alleged in the petition and shown by the testimony, we would not regard its action as an improper exercise of discretion. The defendant employed an attorney in ample time, with proper directions, to care for his interests. The ground upon which defense was set up by Norman Miller, namely, that he was not a partner and in no way liable for the claim upon which suit was brought, was in itself a powerful appeal to a chancellor and would have made the failure to open the judgment inequitable.

As to the setting aside of the fi. fa., Avhich constitutes one of the assignments of error, the plaintiff should have been allowed to retain whatever of security he acquired thereby. In Adams v. Leeds, 189 Pa. 544, although it was a ease in which judgment had been entered by warrant of attorney, which was opened upon application by one of the defendants and the judgment as to him opened and the fi. fa. issued thereon set aside, the Supreme Court said: • “ The opening of a judgment which is a lien on real estate does not destroy or impair the lien, nor does it necessarily affect the lien of a levy made upon personalty under an execution issued on the judgment. The liens in either case may and should be continued pending the determination of the issues relating to the validity of the judgment and to the nature and amount of the indebtedness represented by it.” This applies with equal propriety to a judgment entered by default for want of an affidavit of defense. If the defendant makes good his defense, the execution and lien will fall with the judgment but, until that is done, we think it should remain. We, therefore, now modify the decree of the court opening the judgment and setting aside the execution by reinstating the execution and the lien, if any, acquired thereby.

The order, as thus modified, is affirmed.

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Opinion by

Beavee., J.,

Assuming, for present purposes, that the plaintiff seeks to charge Norman Miller, the husband of Mrs. J. M. Webb-Miller, as a partner, the affidavit made by the latter, which goes to the merits of the claim, should, if sufficient in itself, prevent judgment against the partnership or either member of it. It is true that the affidavit is made by Mrs. Miller on her own behalf but it is based upon grounds which tend to negative any liability by anyone and, in addition, there is an implied denial of the husband’s partnership, inasmuch as he is expressly named as her business manager. If, therefore, the affidavit is good as far as she is concerned, it would seem to be good so far as the partnership is concerned.

If the ground of recovery against Norman Miller is other than as a partner, the declaration is insufficient to charge him with [54]*54any liability. In any view of the case, therefore, from the standpoint of the pleadings, the court was clearly justified in opening the judgment.

If the action of the court had depended entirely upon the failure to file an affidavit of defense under the circumstances alleged in the petition and shown by the testimony, we would not regard its action as an improper exercise of discretion. The defendant employed an attorney in ample time, with proper directions, to care for his interests. The ground upon which defense was set up by Norman Miller, namely, that he was not a partner and in no way liable for the claim upon which suit was brought, was in itself a powerful appeal to a chancellor and would have made the failure to open the judgment inequitable.

As to the setting aside of the fi. fa., Avhich constitutes one of the assignments of error, the plaintiff should have been allowed to retain whatever of security he acquired thereby. In Adams v. Leeds, 189 Pa. 544, although it was a ease in which judgment had been entered by warrant of attorney, which was opened upon application by one of the defendants and the judgment as to him opened and the fi. fa. issued thereon set aside, the Supreme Court said: • “ The opening of a judgment which is a lien on real estate does not destroy or impair the lien, nor does it necessarily affect the lien of a levy made upon personalty under an execution issued on the judgment. The liens in either case may and should be continued pending the determination of the issues relating to the validity of the judgment and to the nature and amount of the indebtedness represented by it.” This applies with equal propriety to a judgment entered by default for want of an affidavit of defense. If the defendant makes good his defense, the execution and lien will fall with the judgment but, until that is done, we think it should remain. We, therefore, now modify the decree of the court opening the judgment and setting aside the execution by reinstating the execution and the lien, if any, acquired thereby.

The order, as thus modified, is affirmed.

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Bluebook (online)

25 Pa. Super. 51, 1904 Pa. Super. LEXIS 12, Counsel Stack Legal Research, https://law.counselstack.com/opinion/van-cott-v-webb-miller-pasuperct-1904.

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