Harris's Petition , 1900 Pa. Super. LEXIS 384 ( 1900 )

Per Curiam,

The question involved in this appeal is whether or not the appellant was entitled to final discharge under his application for the benefit of the insolvent laws without first having undergone an imprisonment of sixty days, as provided in section 17 of the Act of June 16, 1836, P. L. 729. His contention is that the action in which the respondent obtained judgment against him was not founded upon actual fraud, as alleged by the latter, but upon contract, the breach of which did not involve either misconduct or neglect in any professional employment. He has not seen fit to print the record and pleadings in that action. We are, therefore, justified in presuming that the finding of the learned judge of the court below that the judgment “ is founded upon actual fraud committed by him in the embezzlement of the respondent’s funds,” is sustained by the record. Even if it be granted that we have authority to look behind the judgment to ascertain the real cause of action in order to determine his right to discharge, he is in no better position. The question before us is, what was the cause of action upon which the judgment is founded, not whether errors were committed by the court or the jury in the trial of that action. If we are to determine the real cause of action, not from the pleadings alone, but from tbe evidence given on the trial and the charge of the court, these ought to have been printed in full in his paper-book. See sec. 8, Rule 26. The extracts from the evidence which he has seen fit to print do not show that the court erred in the conclusion quoted above from the opinion filed in dismissing the petition.

The suggestion, that, under the 10th section of the Act of May 5, 1899, P. L. 248, we ought to stay all proceedings on this appeal until the appeal pending in the Supreme Court is determined, is not well founded. There was no supersedeas on the appeal from the original judgment, and the section above referred to applies only to cases where it is made to appear that the same questions, and those only, are raised on an appeal to this court, as are raised on appeal pending in the Supreme Court. This is not such a case.

The order is affirmed and the appeal dismissed at the costs of the appellant.