Commonwealth ex rel. Dauphin County v. Hoffman , 1873 Pa. LEXIS 179 ( 1873 )

The opinion of the court was delivered, July 2d 1873, by

Sharswood, J. —

The court below committed no error in striking off the judgment entered for want of an affidavit of defence. The recognisance sued upon was certainly not one of those specified in the rules of court, nor was it a record for the payment of money, but for the performance of collateral conditions. Harres v. The Commonwealth, 11 Casey 416, does not support the contention of the plaintiffs in error, that a recognisance of this character is within the meaning of such a rule. That-was an action in the Quarter Sessions upon a forfeited recognisance for the appearance of a party. There was a rule of the court for an affidavit of defence specially on such recognisances. The main question was, had the court power to make such a rule? It is true that Mr. Justice Thompson expresses the opinion that such a recognisance is an instrument for the payment of money. It is to be remembered that it was under the Act of April 22d 1846, Pamph. L. 477. Primd facie the whole sum named is forfeited and recoverable. The court may, on equitable grounds, respite or relieve from the forfeiture. The decision, therefore, has no bearing upon the case now before us. We think the learned judge was right, also, in holding that the scire facias did not allege what amounted to any breach of the condition. This was that the sheriff should well and truly serve and execute all writs and process, and from time to time, upon request, pay or cause to be paid to the several suitors and parties interested in the execution of such writs and process, all sums of money to them belonging, and well and faithfully execute and perform all and singular the trusts and duties to the said office appertaining. The scire facias alleged that the defendant did not well and faithfully execute and perform all and singular the trusts and duties to the said office appertaining lawfully, in this, that he did at sundry times during his official term, unlawfully obtain from the said county, from and through her officers, divers sums of money, in excess of all moneys and fees, which, by the laws in force within this Commonwealth, he was entitled to obtain and receive as sheriff. In other words, it is a claim to recover back, under the recognisance, an overpayment made to him by the county treasurer, by the order of the county commissioners. No doubt the sheriff is personally liable to the •county in an action for money had and received. But how is his neglect or refusal to pay the debt, which he owes, any violation of his official duties ? It was altogether an illegal act on the part of the county commissioners to draw orders for such payments. No limits can be assigned to the liabilities of the sureties if such a construction' of the condition of the recognisance should be supported. They might as well be held responsible if the sheriff should break into and rob the fireproof in the office of the county treasurer.

As, however, no affidavit of defence was filed in the court below, reliance is now placed upon the determination in The Philadelphia Savings Institution v. Smith, 10 Barr 13. It was there held that if no affidavit of defence has been filed, a judgment will not be reversed because the instrument, a copy of which was filed, was not such as under the Act of Assembly of March 28th 1835, Pamph. L. 89, entitled the plaintiff to judgment. That decision certainly took the profession by surprise, and in the District Court of Philadelphia, it was the subject of frequent reference and discussion. That court then resolved to consider it as a rule of practice in error merely, not therefore a rule for their guidance. Indeed the short per curiam opinion in that case appears, in conclusion, to rest it upon that ground. “ The judge is not bound to look at the cause of action till he has been possessed of the affidavit of defence; and it is not our business to reverse his judgment for an error which, he did not commit.” But even as a rule of practice in error it is anomalous. Wherever upon the face of the record there appears no ground for a lawful judgment, the court of errors will reverse. Thus if the declaration shows no cause of action, though there has been no demurrer or motion to arrest the judgment in the court below: Hoffer v. Wightman, 5 Watts 205; Clay v. Irvine, 4 W. & S. 232. The Acts of Assembly or the rules of court— and without either the court could give no judgment without an issue of law — or an issue of fact tried by a jury, when the defendant has appeared — only authorize such judgments in special cases, when copies of instruments of a particular description are filed, or set forth in the writ, and a judgmént upon an instrument not of this character is no more warranted than if there had been none at all filed or suggested. A plaintiff might otherwise obtain judgment upon a paper not purporting to be signed by the defendant, but by somebody else. The case of The Saving Institution v. Smith, has been silently disregarded in more than one subsequent determination in which if applied as the rule of practice it would have prevented a reversal. In Dewart v. Masser, 4 Wright 302, there was a judgment under a rule of court. No affidavit was filed, and the judgment was reversed in this court on the ground that the copy filed was not of an instrument of writing for the payment of money within the terms of the rule. Mr. Justice Strong said: “A judgment was signed in the court below, for want of an affidavit of defence, avowedly according to rule, and the question now is whether such a judgment was authorized by any rule of the court. If the plaintiff’s claim was not within the rule, then the defendant was in no default for not having filed an affidavit, and the prothonotary had no authority to sign judgment. So, if no cause of action was set out in the declaration, and a declaration was requisite, there is nothing to sustain a judgment.” The fact that under the rule, the judgment w“as signed by the prothonotary made no difference. His act was the act of the court. So in Eshelman v. Thompson, 12 P. F. Smith 495, under an Act of Assembly for Indiana county, no affidavit had been filed. The judgment was reversed because the copy of the lease filed was not an instrument of writing for the payment of money. Besides, if the defendant is compelled to file an affidavit in such cases, he will be required to swear to a mere point of law, of which he is generally incompetent to form an opinion.

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If the learned judge was right, as we hold that he was, in the opinion that the breach alleged in the scire facias was not within the terms of the recognisance, the question as to the report of the auditors became entirely immaterial. Whether that report had the effect of a judgment and was conclusive upon the sheriff of such an amount owing by him, might be very material in another form of action, but as it showed on its face that he was charged, not with, anything for which he was liable officially, — it had nothing to do with the issue. What the judge said in his charge to the jury, whether right or wrong, therefore, did the plaintiffs in error no injury of which they have any right to complain.

Judgment affirmed.