Commonwealth v. Carey , 1916 Pa. Super. LEXIS 85 ( 1916 )

Opinion by

Kepi-iart, J.,

A consideration of this appeal on its merits shows that the appellant is not entitled to a reversal of any judgment or decree entered in the court below. The bond was given to prosecute an appeal to this court with effect. That means, it was to be prosecuted with success: Commonwealth, to use, v. Lenhart, 233 Pa. 526. It is asserted that the bond contained a recital that the original judgment on which the appeal acted as a supersedeas was entered against each of the defendants, when in fact, such was not the case. The judgment was entered against Frank A. Carey, Joseph F. Newman, and Joseph G. Carey, copartners, trading as Frank A. Carey & Company. Newman, the defendant, who it is claimed was not involved in the original judgment presented his petition to the court below wherein he recited all the facts upon which he based his disclaimer of any connection with the partnership and asked that the original judgment be opened and that he be permitted to make a defense. The rule granted on this petition was discharged. No appeal was taken from this order. If the question as to Newman’s being a party to the original judgment were material to the proceeding before us on the bond this order on appeal might be an adjudication of the fact. The bond, however, was signed by one of the copartners with the partnership name and by this appellant as surety for the purpose of causing the appeal to act as :a supersedeas, and, as affecting the surety, it was not necessary that it should be signed by all the partners. Its purpose was to arrest the proceedings in the court below and was tendered as security in consideration of the delay and risk to which the plaintiff might be subjected. There is no reversible error apparent on the face of this record nor in the action of the court below.

The judgment is affirmed.