Phillips v. Allegheny Valley Railroad , 1885 Pa. LEXIS 583 ( 1884 )

Mr. Justice GREEN

delivered the opinion of the court January 6th, 1885.

The intestate, William Phillips, died on April 14th, 1874. The Allegheny Valley Railroad Co., a creditor, brought an action of assumpsit against his administrator on December 20th, 1875, and recovered judgment in the action on January 2d, 1883. On January 10th, 1883, a scire facias against the heirs was issued on the judgment, a verdict was obtained by the plaintiff on December 17th, 1883, and judgment was entered on the verdict on March 28th, 1884. It will be seen that the final judgment against the heirs was obtained before the expiration of ten years from the death of the intestate. It is not disputed, nor can it be, since the case of Hope v. Marshall, 15 Norris 395, that the judgment against the heirs was obtained within the time necessary to charge the land with the lien in the hands of the heirs. The proposition is not controverted by the learned counsel for the plaintiffs in error. They merely claim that because judgment was not obtained in the suit against the administrator until some seven years after the suit was brought, the action 'was not duly prosecuted within the meaning of the Act of February 24th, 1834. Practically they contend that the question of due prosecution was one of fact to be submitted to the jury, who would therefore be at liberty to decide against the plaintiff on that question, although his proceeding was in such condition that he was prepared to enter his judgment against the heirs within tbe ten years from tbe death of tbe former owner. We are not referred to any authority holding such doctrine, and we do not think it is the law. The judgment in the action against the administrator was obtained within five years after the expiration of the statutory lien of five years after death given to all debts, and the suit was brought during the currency of the first period of five years. In the view of all the authorities this was a sufficient compliance with the statutory requirement of duo prosecution. To hold that the jury is to judge at its own discretion whether a suit against the administrator has been duly prosecuted, would be to substitute a wavering, uncertain standard of duty, depending upon the caprice or whim of each jury charged with the trial of such a cause, for what ought to be a definite, absolute rule applicable to all alike. Thus one jury might, if they chose, decide that a delay of one year between the issuing of the writ and the entry of judgment would be an undue prosecution within the meaning of the Act, while another jury might hold that a delay of ten years would not be too great. We held in Penn v. Hamilton, 2 W. 52, that if the action was prosecuted to judgment within five years after the determination of the lien of the debt, it was duly prosecuted within the meaning of the Act, and Chief Justice GibsoN said, speaking of the continuance of the lien after judgment obtained against the personal representative, “the period which the lien shall be suffered to endure afterwards cannot be left to a jury, under the circumstances, with either certainty or safety; it must be a determinate one and measured by the court as a conclusion of law. But without resorting to parallel provisions for cases standing in the same mischief, it will be impossible to extract a definite rule from words of sucb indefinite importas ‘ duly prosecuted.’” In Corrigan’s Est., 1 Norris 495, we held that under the Act of 1797 the mere bringing of the suit against the personal representative of a decedent within seven years after his death, continued the lien of the debt for a period of twelve years from the time of bis decease, and that it is immaterial at what time within the seven years the judgment was obtained, as the lien runs to the termination of the period of twelve years without a further proceeding. It was also held that the Act of 26th February, 1884, merely changed the time of the first period from twelve years to ten. All this was repeated in Hope v. Marshall, supra. In Maus v. Hummel, 1 Jones 228, Coulter, J., speaking of the case of Penn v. Hamilton, said “the construction given to the words ‘ duly prosecuted,’ is that no matter at what time within the seven years the suit was brought, it continued tbe lien for five years after the termination of the seven, although judgment was not obtained within the seven.”

In the face of these decisions we do not see that there is any room for an allegation that the present claim was not duly prosecuted in the first action. If the mere bringing of the action against the personal representative, of itself continues the lien for the full term of ten years from the death of the decedent, it is immaterial at what time within the ten years the judgment in the first suit is obtained, so that the scire facias against the heirs is prosecuted in time to charge them. In any case, if the prosecution of the first suit is such that the plaintiff has been able to obtain his judgment against the personal representative, and also his judgment against the heirs, within the ten years, it cannot be said that the first suit has not been duly prosecuted, since the final judgment has been obtained within a period which is undoubtedly sufficient to bind the heirs. It can make no difference to them whether the first suit was prosecuted with greater or less despatch, in a case in which the lien has existed continuously from the impetration of the first writ, and the final judgment has been obtained before the expiration of the continued lien. The question whether if the second judgment were obtained after the second period of five years had expired, though the scire facias was issued within that period, the heirs would be bound is not before us and is not decided.

We are of opinion therefore that the first suit in this ease was duly prosecuted within the meaning of the Act of 1834, and that it was the duty of the court below to so instruct the jury, and for that reason the first nine assignments of error are dismissed.

The tenth assignment is not sustained. This was a scire facias to revive against the heirs a judgment obtained against the administrator. The heirs were permitted to disprove any or all the items that went to make up the judgment, but the disproof of one or several of the items could not affect the others.

Eleventh assignment. The court certainly could not have affirmed the defendants’ third point. The settlement was open to attack upon the same grounds that any settlement between parties may be impeached, such as fraud, accident or mistake, and had such testimony been offered it would doubtless have been received. Discrepancies between the bill of particulars in .the original suit, and the evidence offered in support of it, were matters to be settled in that suit and were determined by the judgment. It is not easy to determine the precise application of the point to the facts of this case, but it seems to declare that a difference between a piece of testimony offered in tbe first suit and tbe bill of particulars filed in that suit destroys tbe prima facies of tbe judgment finally obtained therein, and puts the plaintiff to original proof of all the items of the claim. We cannot agree to this, and therefore dismiss the assignment.

Twelfth assignment. The defendants’ fourth point simply proposed to transfer the burden of proof from the defendants to the plaintiff for the reason there stated, which we think was insufficient. The matter had already been tried and decided in the original action, and the defendants were not denied in this suit the opportunity to show that there was error in the items referred to.

The thirteenth assignment is practically a repetition of the eleventh with a little more of detail, and is not sustained, for the reasons stated in disposing of the eleventh assignment.

Fourteenth assignment. It is conceded that the first part of the answer to the plaintiff’s fourth point was correct. Exception Is taken to that part of the point Avhich declares there is no evidence sufficient to impeach the judgment as to items entered on the plaintiff’s books after the death of William Phillips. The only testimony we are referred to in this connection is that which relates to the Templeton purchase. It is true the court did leave this to the jury, and the defendants had the benefit of a special consideration of that subject by them. As we are of opinion that the court might properly have taken this matter from the jury, for reasons hereafter stated, the apparent error growing out of the inconsistency between the answer to the point and the general charge as to this matter becomes immaterial.

Fifteenth assignment. The obvious meaning of the part of the charge covered by this assignment, is that there could not be a verdict for the defendants, and that the whole of the original ease could not be re-tried by this jury merely upon an examination of the books and without regard to the judgment already obtained. The court said the defendants might show errors in the items by the books, but could not receive the books as a whole and simply re-state the account from them. We see no error in this. The books were in court open to inspection and examination and testimony as to items was admitted. It was not, and is not, contended that the court should have given a binding instruction to the jury to render a verdict for the defendants, nor that it was error in the court to say there must be a verdict for the plaintiff for some amount.

Sixteenth assignment. The reason stated by the court below for not allowing Exhibits 1 and 2 to be sent out with the jury, to wit, that they contained items about which there was no proof, was quite sufficient. Moreover the court offered to give the items as to which there was proof and have the evidence relating to them read over.

Seventeenth assignment. The refusal to send out Exhibits 1 and 2 is no reason for refusing to send out other exhibits if the latter were proper to be considered by the jury in their room. If they were not, the reasons for excluding them ought to appear.

Eighteenth assignment. The answer to the fifteenth assignment disposes of this. The books were not admissible in 'mass.

Nineteenth and twentieth assignments. The court admitted all the items in these papers professed to be incorrect, and the other items were not competent without some proof of their incorrectness.

Twenty-first assignment. In the absence of proof that these entries were not rightfully posted to the individual account of Phillips, they were not competent.

Twenty-second and twenty-third assignments. The court very properly excluded proof as to the private papers of Phillips in the custody of the plaintiff, unless followed by proof of their relevancy to this case. A proceeding to compel their production was the proper remedy.

Twenty-fourth assignment. We fail to see the relevancy of an offer to prove the financial condition of the company when Mr. Phillips went in.

Twenty-fifth and twenty-sixth assignments: These were offers to prove a set-off against the plaintiff of which no notice was given in the affidavit of defence, and they, therefore appear to be inadmissible under the fourth section of Rule 8 of the court below: Irrespective of this the offers do not make clear all the facts which would be necessary to show that the" plaintiff ought to be now accountable to Phillips or his representative for the amount which was charged against him in the final settlement of the accounts of the firm of Lyon, Shorb & Co. If there was a loss on the bonds delivered to the firm it is not disclosed by the offer whether the plaintiff should be accountable for the loss. We think it incumbent upon the defendants to exhibit in their offer every fact necessary to establish the relevancy of the testimony proposed to be given. It is impossible for us to know under these offers what equities between the partners may have determined the liability of Phillips to his firm in reference to these matters.

Twenty-seventh, thirty-first, thirty-second and thirty-third assignments. All of these offers fail to connect with the bonds specifically charged against Phillips, and no offer is made to connect the proposed proof with them by other testimony.

Twenty-eighth assignment. This offer contains no extracts from the books, no statement of their contents, no particular entries and no description of the books except that they were books of Wm. Phillips, President of the A. V. R. R. Co., kept by his secretary, who is since dead; the books are not before us, and it is therefore impossible for us to say that either the books themselves or entries in them were competent testimony. The court below after inspection of them decided them to be incompetent and wo cannot say this was error.

Twenty-ninth and forty-sixth assignments. We fail entirely to see the propriety of the inference which the defendants propose to draw from the proof offered under these assignments, or how it could operate to relieve Mr. Phillips from the charge against him for the missing bonds and coupons.

Thirty-fourth assignment. It does not appear that the item of $527.20 constituted any part of the judgment against Phillips and therefore the proof offered would not affect the judgment. As an independent transaction the check had been introduced and explained by John Ballentine, the defendants’ witness on cross-examination, who showed that Phillips had been repaid. With no other explanatory testimony the check itself was irrelevant.

Thirty-fifth to forty-third assignments, loth inclusive. The difficulty with all of these offers is that it had already been shown by the testimony of Ballentine or by the exhibits in evidence, that Mr. Phillips had received credit for the various items and there was no other evidence respecting them in the case. There was no other explanatory testimony offered with them, and without some such evidence there was nothing to impeach the fact of the credits and repayments.

Forty-fourth assignment. The fact that Phillips accounted for the bonds mentioned in the receipt is no proof that he accounted for other bonds which were missing. It does not appear that he was charged with the bonds mentioned in the receipt and the offer was therefore irrelevant.

Forty-fifth assignment. The same is true as to the proof offered under this assignment. Proof that Phillips returned certain bonds which he held is no proof that he accounted for other bonds not returned.

Forty-seventh assignment. It is not in any manner explained either in the offer or anything said in support of it how this proposed evidence could show that Mr. Phillips was wrongly charged as to any item which went to make up the judgment rendered against him, and in the absence of such explanation we can not say the court was in error in rejecting the offer.

Forty-eighth, forty-ninth and fiftieth assignments. As there was no evidence that Phillips ever conveyed title for any part of the Templeton tract, to the plaintiff, he was certainly chargeable with the $16,000 of their bonds which he had received to be applied to payment for the land, and he should be surcharged with the $9,375 with which he had been credited as paid for the company on the purchase. The .court would have been justified in giving a binding instruction to the jury to this effect.

Judgment affirmed.