CLARK v. CLARK. (No. 261.) (Supreme Court of Pennsylvania. March 23, 1896.)

Appeal from court of common pleas, Allegheny county.

Suit by Elizabeth Clark, administratrix of Edward L. Clark, deceased, against Jane Clark, for dissolution of a partnership, and for an injunction and an accounting. From the decree, defendant appeals. Affirmed.

S. Schoyer, Jr., and Shiras & Dickey, for appellant. George C. Wilson, Knox & Reed, and Watson & McCleave, for appellee.

GREEN, J. We are satisfied with the master's rulings as to the value of the plant, and are not convinced that there is any error in the matters complained of in the several assignments of error on the part of the defendant. The principal subject of contention between these parties has been disposed of in the opinion and decree filed in the case of the plaintiff's appeal. 34 Atl. 610. The assignments of error are overruled, and appeal dismissed, at the cost of the appel

lant.

PRELIMINARY INJUNCTION-RESTRAINING PROCEEDINGS THEREUNDER.

Proceedings under a decree awarding preliminary injunction restraining defendant railroad from interfering with construction of plaintiff's track over defendant's road at grade, the right to which is denied by defendant, will, on appeal from the decree, be restrained till final hearing, the crossing not having been actually completed under the decree.

Appeal from court of common pleas, Delaware county.

Suit by the Chester Traction Company and the Union Railway against the Philadelphia, Wilmington & Baltimore Railroad Company to restrain defendant from interfering with the construction and maintenance of a track at grade over defendant's tracks; also for a

decree for the manner of constructing and maintaining the crossing. Defendant's answer denied the right of plaintiffs to such crossing. From a decree awarding a preliminary injunction, declaring plaintiffs' right to the crossing, and how it shall be constructed, and restraining defendant, defendant appeals. Proceedings under decree restrained. John B. Hannum, for appellant. W. B. Broomall, for appellees.

PER CURIAM. This, as it seems to us, was not a case for a preliminary injunction. It did not tend to preserve the status of the parties pending the litigation, but to destroy it. In its character and effect it was final, for it gave to the plaintiffs the right for which they contended in advance of the regular determination of that right. But the decree was made, and the crossing has been completed under its authority. The authority to make the crossing is yet to be determined on final hearing. Upon that subject we express no opinion. It will be time enough to consider it when regularly presented. Meantime there is no reason apparent why we should disturb the operation of the plaintiffs' road by reversing the order appealed from until the subject can be fully and intelligently disposed of by a final decree. It is for this reason that we affirm the action of the court below. This must not be taken as an expression of opinion upon the question of the plaintiffs' right to cross at grade, but as due to disinclination to disturb the present status until that question may be settled by a final decree.

Modification of Decree.

And now, March 23, 1896, the decree made in this cause on the 9th day of March, 1896, having been made under the erroneous impression that the crossing in question had been actually completed, is modified by adding thereto the following: "Proceedings

under the decree of the court below are restrained until final hearing, and the status as it was at the date of the decree hereby modified is to remain undisturbed."

EXECUTORS AND ADMINISTRATORS-PROBATE PRAC TICE-WAIVING IRREGULARITIES.

1. Where, after an executor has answered a petition for his removal, the petitioners desire to allege other grounds for his discharge, they should ask leave to amend their petition by inserting such new matter therein, instead of filing a replication.

2. Where, after an executor has answered a petition for his removal, petitioners file a replication, alleging new grounds, instead of asking leave to amend their petition, the executor, by failing to object to such irregularity and proceeding to take testimony, waives his right to object to a decree removing him on the grounds set out in the replication.

Appeal from orphans' court, Lebanon county; A. W. Ehrgood, Judge.

Petition for the removal of George T. Brooks, executor of the estate of Eliza Miller, deceased. From a decree removing said executor, he appeals. Affirmed.

Bassler Boyer, for appellant. W. D. Fisher, for appellees.

PER CURIAM. In their petition for the discharge of appellant as trustee, etc., the appellees aver that in his second and final account filed appellant expressed his desire to be discharged, etc., and pray the court to enter a decree discharging him at his own request. In his answer, appellant avers that, while he then desired to be discharged, or intended making an application for his discharge, he has since been advised and believes that it is to the best interest of the estate that he should continue as executor and trustee. A replication was thereupon filed by the appellees denying that it is to the best interest of the estate that appellant should continue to act, etc.; and in support thereof they aver actual or prospective insolvency of appellant, mismanagement, etc. This was bad practice. Instead of filing a replication, and averring therein new matter as ground for appellant's discharge, they should have asked leave to amend their petition by inserting therein other grounds for appellant's discharge; or the appellant might have moved to strike out the irrelevant matter. But, so far as the record shows, neither party attempted to correct the pleadings. On the contrary, they acquiesced therein, and proceeded to take testimony, upon consideration of which the court found such gross mismanagement on the part of appellant as clearly justified his removal from office. It is now too late for appellant to take advantage of an irregularity in the proceeding which might have been corrected if he had moved therein at the proper time, and in an appropriate manner. It is idle to say that he objected to the proceeding. If he had done so in the proper way, the fact should appear of record. Merely verbal objections, without more, would, of course, be of no avail. Decree affirmed, and appeal dismissed, with costs to be paid by appellant.

Appeal from court of common pleas, Montgomery county.

Action by F. A. North and another, trading as F. A. North & Co., against E. M. Yorke. From a decree striking a default judgment from the record, plaintiffs appeal. Reversed.

Joseph Fornance and Chapman & Chapman, for appellants. Henry Pleasants and George W. Reed, for appellee.

STERRETT, C. J. It clearly appears by the record that this case was ripe for judgment on December 20, 1894, the sixteenth day after the writ and statement of claim were served on the defendant; and on that day judgment by default was accordingly entered against her for want of an affidavit of defense, and the amount liquidated at $410.19. No affidavit of defense having been theretofore filed, the judgment thus entered was undoubtedly regular and valid, and plaintiffs were entitled to all the incidents thereof, such as lien, etc., until it was legally reversed or satisfied. Weigley v. Teal, 125 Pa. St. 498, 17 Atl. 454; Newbold v. Pennock, 154 Pa. St. 591, 26 Atl. 606. While the court, for sufficient cause shown, could, under its equitable power, open such a judgment and let the defendant into a defense, it was powerless to strike it from the record, because it was not only regular on its face, but perfectly regular and valid in point of fact. Judgments cannot be legally stricken from the record save for irregularity or illegality. O'Hara v. Baum, 82 Pa. St. 416, 420; Allen v. Krips, 119 Pa. St. 1, 5, 12 Atl. 759; Breden v. Gilliland, 67 Pa. St. 34; Adams v. Grey, 154 Pa. St. 258, 26 Atl. 423. In the case first cited it is said: "A motion to set aside or strike off a judgment must be on the ground of irregularity appearing on the face of the record. A motion to open it is an appeal to the equitable power of the court to let the defendant into a defense." And the others are substantially to the same effect. After quoting from O'Hara v. Baum, supra, etc., our Brother Mitchell, in his treatise on Motions and Rules, 74, etc., says: "The motion to strike off judgment is essentially a common-law proceeding, a short and summary substitute for an audita querela, a writ of error coram nobis, or a certiorari or a writ of error from a superior court, by which the same relief was administered." "Being for irregularity apparent on the face of the proceedings, it is in the nature of a demurrer to the record, and is not confined to any particular kind of judgments, nor limited as to the time it may be taken advantage of, nor affected by matters dehors the record, except so far as defendant may have put himself in position to be estopped from making the objection." We have taken no notice of defendant's appearance by attorney a week before judgment was taken, nor of her affidavit of defense, filed nine days thereafter;

because the former could not in any way interfere with the plaintiffs' right to judgment, under the act, for want of an affidavit of defense within the required time, and the latter was wholly inoperative, except in so far as it might be relevant in connection with the defendant's petition for rule to open the judgment, etc., filed January 1, 1895. The rule granted on that petition appears to remain undisposed of, and, of course, we intimate no opinion as to its merits; but, for reasons heretofore given, the decree of January 21, 1895, from which this appeal is taken, must be reversed, and the judgment reinstated; and that will clear the way for such disposition of the pending rule to open, etc., as the court below may consider proper. Decree of January 21, 1895, reversed, with costs to be paid by the defendant, and judgment reinstated; and it is ordered that the record be remitted for further proceedings.

WYMAN v. CITY OF PHILADELPHIA, (Supreme Court of Pennsylvania. April 13, 1896.)

PERSONAL INJURIES-SLIPPERY SIDEWALKS-LIABILITY OF CITY-NOTICE TO ABUTTING Owner.

1. Though a city is not liable for a mere ordinary slippery condition of a sidewalk resulting from the sudden formation of ice, yet where the snow and ice exist on a sidewalk in ridges and little hills, which are permitted to remain in that condition a sufficient time to charge the city with knowledge of the condition, it may be liable for an accident arising from slipping thereon.

2. A city is not relieved from liability for an accident occasioned by slipping on an accumulation of ice and snow on a sidewalk because of previous notice to the abutting owner to remove it.

Appeal from court of common pleas, Philadelphia county.

Action by Alfred Wyman against the city of Philadelphia for injuries received from slipping on a sidewalk. Judgment for plaintiff, and defendant appeals. Affirmed.

John L. Kinsey, City Sol., and Leonard Finletter, Asst. City Sol., for appellant. Edward W. Kuhlemeier and George S. Russell, for appellee.

PER CURIAM. The learned judge of the court below submitted this case to the jury in precise accord with our decisions in this class of cases, and the jury found for the plaintiff the matter of fact thus submitted. The jury was carefully instructed that the city was not liable for a mere ordinary slippery condition of the sidewalk resulting from the sudden formation of ice, but that, if the snow and ice existed in ridges and little hills, and the pavement was permitted to remain in that condition for a length of time sufficient to charge the city with knowledge of the situation, and the obstruction was not removed, there might be liability for an accident happening in those circumstances.

There was plenty of testimony to establish the plaintiff's contentions in this respect, and it was therefore the duty of the court below to submit the case to the jury, which was done in a very careful and cautious manner. The liability cannot be removed by a mere notice to the owner. Judgment affirmed.

COMEY V. PHILADELPHIA TRACTION CO.

(Supreme Court of Pennsylvania. April 13, 1896.)

INSTRUCTIONS-Weight OF EVIDENCE.

* *

The court, after charging: "I think the evidence is that it [plaintiff's injury] is a permanent injury; but you are the judges of the weight of the evidence. It seems to me the weight of the testimony is that his injury is a permanent one. But while it may be a permanent injury, it is clear that it does not amount to a total disability," went on: "It is the case, therefore, of a partial, but permanent, disability, and you are to assess the damages, if you find for plaintiff, on that basis"; and proceeded: "You are not to find damages which would represent a total destruction of the plaintiff's ability, but for a partial injury to his ability." Held, that the jury were not charged as a fact that the injury was permanent.

Appeal from court of common pleas, Philadelphia county.

Action by Dennis F. Comey against the Philadelphia Traction Company for personal injuries from a collision. Judgment for plaintiff. Defendant appeals. Affirmed.

Defendant's second specification of error was to the part of the charge reciting: "It is the case, therefore, of a partial, but permanent, disability, and you are to assess the damages, if you find for the plaintiff, on that basis." This immediately followed the sentence of the charge commencing, "There may be some things he could not do," and immediately preceded the sentence commencing, "You are not to find damages which would represent a total destruction of the plaintiff's ability."

J. Howard Gendell and S. Davis Page, for appellant. H. Homer Dalbey and Louis Brégy, for appellee.

PER CURIAM. The instructions recited in the first specification were not only warranted by the testimony, but they were quite as favorable to the defendant company as they should have been. The excerpt, on which the remaining specification is based, is obviously the learned trial judge's conclusion from what he properly said in the two preceding paragraphs of his charge, viz.: “The plaintiff's injury was a serious one. I think the evidence is that it is a permanent injury; but you are the judges of the weight of the evidence as well as of the credibility of the witnesses. It seems to me the weight of the testimony is that his injury is a permanent one." "But while it may be a permanent injury, it is clear that it does not amount to a

total disability of the plaintiff. It is not a total disability from which he suffers, but a partial one. No one would undertake to say that because he has a lame ankle he could not work for a living. There may be some things which he could not do, and the fact of his lameness may be a very serious drawback to him in whatever he would do." Every word of this was warranted by the testimony, and hence the conclusion complained of is correct and proper. Out of abundance of caution, however, the learned judge proceeded to say: "You are not to find damages which would represent a total destruction of the plaintiff's ability, but for a partial injury to his ability, and you are to judge of that as reasonable men, doing nothing in anger or from prejudice, but awarding what you think simply a fair, just, and full compensation for the actual inconvenience, pain, injury, loss, and suffering, which the plaintiff has undergone." It thus appears that, when the alleged erroneous construction is considered in connection with the context and in the light of the testimony, it is not only devoid of error, but entirely fair to both parties. The practice of assigning error to a single sentence, severed from the context, as was done in this case, is not to be commended. There is nothing in either assignment of error that requires further notice. Judgment affirmed.

In re CLEMENS' ESTATE. Appeal of FIDELITY INSURANCE, TRUST & SAFE-DEPOSIT CO. (Supreme Court of Pennsylvania. April 13, 1896.)

ASSIGNMENT FOR CREDITORS-CLAIMS OF TRUSTEE FOR ASSIGNOR

A trustee under a will for C., as such trustee, held a mortgage executed by C. and secured on land owned by C. This land, subject to the mortgage, was, with other land, included by C. in an assignment for creditors. The land was not sold by the assignee till seven years after the assignment, C. desiring that it should be retained by the assignee till the real estate market improved, and no interest on the mortgage was paid by the assignee to the trustee. Before the assignment, without any money passing on account thereof, the trustee charged itself with the interest due from C., and credited itself with having paid the same to C. as income. This practice, to the knowledge of C., was continued after the assignment. C., in the meantime, was occupying a house belonging to the assigned estate, paying no rent, but only the taxes and some other charges against it, considerably less than the value of the rent. Held, that the trustee had no claim against the assigned estate for interest on the mortgage.

Appeal from court of common pleas, Philadelphia county.

In the matter of the assigned estate of Amanda M. Clemens. From a decree dismissing exceptions to, and confirming the report of, the auditor, which disallowed the claim, the Fidelity Insurance, Trust & SafeDeposit Company, said company appeals. Affirmed.

The report of the auditor was as follows: "Richardson L. Wright, Jr., Esq., presented the claim of the Fidelity Insurance, Trust & Safe-Deposit Company, trustees under the will of Benjamin Davis, deceased, for Amanda M. Clemens, to recover interest on a bond and mortgage for $7,500, secured against premises No. 1701 Mt. Vernon street, Philadelphia, from June 29, 1886, until June 29, 1893. Amount of interest claimed, $2,625. Prior to 1886 Amanda M. Clemens was owner of premises 1701 Mt. Vernon street, and in December, 1883, executed a bond and mortgage thereon for $7,500 to the claimant. the Fidelity Insurance, Trust & Safe-Deposit Company, trustees as aforesaid. On July 29, 1886, she conveyed said premises, inter alia, to D. R. Patterson, as assignee for the benefit of her creditors, subject to said mortgage. On August 21, 1893, the assignee sold the said premises subject to said mortgage. These facts appeared in the testimony of Mr. Wright and Mr. Patterson before the auditor. It further appeared, from their testimony and the account books of claimants, that Amanda M. Clemens had collected some $700 of the estate due the assignee and had retained the same. She also occupied a dwelling house in Bristol, Bucks county, Pa., belonging to the assigned estate, on which she paid the taxes and interest on mortgage thereon, but failed to pay any rent. That house was worth, in rent, about $100 per year more than the sums she paid on and for it. Under the will of Benjamin Davis, Mrs. Clemens is entitled to receive the income from the trust in the hands of the Fidelity Trust Company, and therefore was entitled to receive the interest in the said $7,500 mortgage. For the reasons mentioned above, the assignee did not pay any of the interest on the said mortgage to said trust company, as mortgagees, nor to Mrs. Clemens, and the trust company, as trustees, did not collect the said interest from the assignee. It appeared from the account books of the trust company, trustees, that they had a trust account with Mrs. Clemens, in which they debited all income due her, and credited payments to her and other credits pertaining thereto. Prior to her assignment in 1886, the interest on the $7,500 mortgage had been debited in her account as if received, and credited as if paid her, the credit entry each six months being stated as follows: "Credit to adjust interest, per contra, $187.50." No money actually passed. After the assignment, and until the property was sold in 1893, the same course of debit and credit was pursued, and the books of the trust company do not show any interest due them on this mortgage. The income was paid Mrs. Clemens with this interest money charged against her. Of this, and of the nonpayment of interest by the assignee, Mrs. Clemens had full knowledge, and by her silence and passiveness she ratified and approved the acts of her trustee. She voluntarily paid

the debt, but she did so for her own personal benefit. She opposed the foreclosure of the mortgage, because she knew the realestate market was not good, and desired the property to be held by the assignee, subject to the mortgage, so that, at a future time, a larger price could be obtained, and in pursuance of such course never demanded the interest from the assignee, and acquiesced in being charged by her trustee with it. Of course, she had a right so to do. The more money obtained by the assignee out of the property helped to pay the debts due by her to her creditors, and so relieved her from debts by her created. Mrs. Clemens is not ignorant of business matters. She has had large experience both as to banking transactions and commercial transactions, and it appeared, from the testimony, she scrutinized the accounts of her trustees, and knew every item charged against her. She was living in a house belonging to her assigned estate, on which she paid certain sums, at least $100 less than the rent would produce. She had improperly collected and retained $700 belonging to her assigned estate. She had hopes the mortgaged premises would bring several thousand dollars more at a future time than it would bring when she opposed its sale. For these reasons, sufficient unto herself, she voluntarily paid this interest money, when, year after year, she acquiesced in its being charged against her, and received the balance remaining due her, never demanding it of her trustees nor the assignee. There is, however, no money due the trustees on this mortgage. Their books show it is paid. They can only claim the payment once to them, and, having received that from Mrs. Clemens, cannot legally demand its payment from any other party. When the property was sold they gave a certificate that nothing was due for interest on it, and they did not do so accidentally. No fraud or mistake induced that action. They did so voluntarily, having been paid what was due to them for interest. They freely certified to that fact. The auditor, therefore, is unable to see, from the evidence in this case, that any interest is due by the assignee on the $7,500 mortgage. On the contrary, the evidence shows that the Fidelity Company, as trustee, have no claim whatever. The interest moned was paid them voluntarily by Mrs. Clemens, who had good, legal, moral, and equitable reasons for so doing. Their books show full payment of it to them. For these reasons, the claim is disallowed."

Jacob Snare and E. O. Michener, for appellant. H. T. Dechert, for appellee.

PER CURIAM. The facts found by the auditor in the court below, upon ample testimony, fully justified his conclusion that there is no money due to the appellant on the mortgage in question. The course of dealing

between the appellant and the assignor, by which the latter was charged on the books of the appellant with each year's interest which she owed as mortgagor to the appellant as mortgagee, and at the same time crediting her with the same interest, which they owed her under the trust created by her husband's will, was fully acquiesced in by the assignor for a number of years, and was practically continued as well after as before the assignment. Having received the interest in this way once, they cannot claim it again. The assignments of error are not sustained. Decree affirmed, and appeal dismissed, at the cost of the appellant.

MCEWEN v. HOOPES et al. (Supreme Court of Pennsylvania. April 27, 1896.)

NEGLIGENCE-DIRECTING Verdict.

A verdict is properly directed for defendant in an action against an employer for injury to a servant, there being no sufficient evidence of defendant's negligence.

Appeal from court of common pleas, Philadelphia county.

Action by Michael McEwen, by his next friend, against Barton Hoopes and others, trading as Hoopes & Townsend, for injury received by plaintiff while in defendants' employ.

Verdict was directed for defendants, and plaintiff appeals. Affirmed.

The charge to the jury was as follows: "I am sure, from the attention which you have paid to this case, that you must clearly understand it. It is an imperative rule of law in such cases that, if it be shown that the plaintiff has been guilty of negligence which has contributed to the accident from which he suffered, he cannot recover. The testimony in this case is overwhelming, in my opinion, that the plaintiff's accident was due entirely to his own negligence. He undertook to clean a machine dangerous in its character while it was in active operation, a thing which no man with common sense ought to have done. He had no more right to put his hand into that machine while it was in motion than he had to put it into the mouth of a lion. Although under age, he was old enough to understand the consequences of such an act. Any man having arrived at that age is presumed to know enough to keep his hands out of machinery which is in motion, and it was not necessary for anybody to instruct him to do that. He ought to have known it, and there is evidence in the case that he admitted that he knew it. Therefore, even if you should find that he was not instructed that it would be dangerous to put his hands into a machine like this while it was in motion, it would be no answer to the manifest negligence of the plaintiff, which has been fully proved. Moreover, it has been shown that there were notices all about this establishment that the employés should not do this