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Racunas v Vaughan.

Judgments Warrant of Attorney -Duty of Prothonotary-Act 24th Febru

ary, 1806-Military Service Act of Congress of March 8, 1918.

Under the Act of 24th February, 1806, 2 Stew. P. D. 2036, it is the duty of the prothonotary, upon praecipe of plaintiff's attorney, or even at the mere oral reqest of the plaintiff or any other person acting for him, to enter judgment against a defendant for the penal sum of his bond containing a general warrant of attorney to appear for and confess judgment against him for that sum. It is not essential that the praecipe be signed by any one acting for the defendant.

Tho Act of Congress of March 8, 1918, requiring proof by affidavit that a defendant is not in military service, or an order of court, before entry of a judgment, has to do with judgments for want of appearance to adverse process, and not with those founded on confessions. Nor does the Act apply to the case of a defendant who is not and never has been in the military service. There is nothing in the Act to warrant the conclusion that the measure of relief to one entitled to its benetfits, should amount to vacation of the judgment.

Motion to Strike Off Judgment. Lackawanna County.

No. 795, October Term, 1919.

C. P.

0. B. Partridge, for plaintiff. P. V. Vattes, for defendant.

NEWCOMB, J., December 16, 1919.-August 21, 1919, judgment d. s. b. was entered against defendant for the penal sum of his bond. In form the authority for it was a general warrant of attorney to appear for and confess judgment against him in that amount. The entry was made by the prothonotary on praecipe of plaintiff's attorney in the usual form.

It is objected that the judgment is fatally irregular, (1), as not within the scope of the power because in the nature of the case that could be exercised only by one acting for defendant, and not by plaintiff's agent; (2), that there was no proof by affidavit that defendant was not in military service, nor order of court, as required by the Act of Congress of 8th March, 1918.

So far as concerns the latter, it is sufficient to say that the Act of Congress has to do with default judgments for want of appearance to adverse process, and not to those founded on confessions. That is not all; it is intended for the benefit of those in service, and there is no pretense that defendant is now or ever has been in the service. There is nothing in the Act to warrant the conclusion that even though entitled to the benefit of the statute, the measure of relief would be the vacation of the judgment; and this objection may be dismissed without further comment.

As to the other reason, it might have some merit if it appeared that plaintiff's attorney had attempted to act in the dual capacity of agent for both parties, and thus had confessed judgment against one client in favor of the other in the ostensible exercise of the power conferred by the instrument. But that is not what happened. The judgment was entered by the prothonotary as 'n duty bound, though at the instance of plaintiff by hand of his attorney. This is one of the writings to which our statute applies, and the prothonotary could have entered the judgment at the mere oral request of the plaintiff or any other person acting for him: Act 24th February, 1806, 2 Stew, P. D., 2036. That is an official act which he cannot refuse to do, and the mere fact that the request was in writing in form of a praecipe of plaintiff's attorney cannot invalidate it. That was not filed in pursuance of any authority to be derived from the bond, but in his capacity as an officer of the court.

The motion is denied and the rule to show cause is discharged.

Codorus Planing Mill Co. v Horn

Fictitious Name

Contracts.

-Act of June 26, 1917, P. L. 645—-Contracts

-Unlawful

It is a long and well-established general rule of law that the courts will not in any case lend their aid to the enforcement of an unlawful contract, whether it be based upon a transaction which is malum in se or merely malum prohibitum.

Contracts made in direct violation of the prohibitory terms of a statute are unlawful, and, therefore, unenforceable, even though the statute regulating them does not specifically declare them to be void.

A co-partnership doing business under a firm name, which has failed to file in the office of the Secretary of the Commonwealth and in the prothonotary's office a certificate setting forth the real names and addresses of all persons owning or interested in the business, and the name under which the business is being conducted, as required by the Act of June 26, 1917, P. L. 645, can not recover for labor and materials furnished by such co-partnership.

Action on Assumpsit.

No. 59 October Term, 1919. C. P. York County.

Zerfing, for plaintiff.
Fluhrer, for defendant.

WANNER, P. J., December 15, 1919.—This is an action of assumpsit for the price of certain labor and materials furnished the defendant by the plaintiff, and the latter now moves the Court for judgment for want of a sufficient affidavit of defense.

The plaintiff's statement discloses the fact that J. H, Senft, H. M. Williams, Robert Senft and A. B. Heilman were doing business in the County of York in the name of the Codorus Planing Mill Co., at the time when the cause of action accrued in this case, and it is admitted that they have not registered their said assumed or fictitious name in the Prothonotary's Office in this County, or in the Office of the Secretary of the Commonwealth, at Harrisburg, Pa., as required by the Act of June 26, 1917, P. L. 645, which Act provides as follows:

"Section 1. Be it enacted, &c., That no individual or individuals shall hereafter carry on or conduct any business in this Commonwealth, under any assumed or fictitious name, style, or designation, unless the person or persons conducting or carrying on the same shall have first filed in the office of the Secretary of the Commonwealth and in the office of the prothonotary, to be entered in a book to be provided for that purpose, à certificate, under oath, and signed by such person or persons, setting forth the real name or names and addresses of all the persons owning or interested in said business, and also the name, style, or deignation under which said business is being or will be carried on or conducted.”

"Section 3. Any person carrying on or conducting any Lusiness in violation of this act shall be guilty vi i mislemeanor, and, upon conviction, shall be punished by a fine not exceeding five hundred dollars, or by imprisonment not exceeding one year, or both, in the discretion of the court."

The affidavit of defense sets up the plaintiff's failure to register its said assumed name, in accordance with the requirements of said Act of 1917, supra, as an absolute bar to its recovery in this case, because the carrying on of its business, and the making of the contract in suit by plaintiff, were alike unlawful and penal acts, under the provisions of said statute.

In support of this contention the defendants cite Birnstone v Shoenfeldt, 19 Lack. 35, and Sykes doing business as Sykes Department Store v Pennsylvania R. R. Co., 67 P. L. J. 517, in which case it was held that contracts made by parties doing business in Pennsylvania under assumed

Codorus Planing Mill Co. v Horn.

or fictitious names, without having first registered the same, as required by the Act of 1917, supra, are void and unenforceable at law.

There are as yet no reported recisions on the appellite courts under this staiute, which is a recent 0.2, but there are numerous reported cases enforcing other Acts of Assembly containing similar provisions, and avoiding contracis made in viclation thereof: Swing v Munsen, 191 Pa. 582; Kerschen & Co., v English, 70 Pa. Super Ct., 293; Insurance Co. v Sharpless Brothers, 12 Pa. Super Ct., 333; Johnson v Heulings, 103 Pa., 498; Myer v Wiest, 250 Pa., 576.

These cases are all applications of the long and well (stalilisher general rule of law that the courts will not in any case lend their ail to the esforcement of an unlawful contract, whether it be baied upon a Transaction which is malum in se or merely malum prohibitum. Contracts made in direct violation of the prohibitory terms of a statute are unlawful, and therefore unenforceable, even though as in this case, the statute regulating them, does not specifically declare them to be void. That conclusion follows necessarily from the application of the general rule of law just quoted. Sidenpender v Charles Admrs., 4 S. & R., 159; Columbia Bridge Co. v Heldeman, 7 W. & S., 233; Harper v Young, 112 Pa., 419; Vendegrift v Vendegrift, 226 Pa., 254.

If the illegal contract has been executed, the law leaves the parties in possession of what each has acquired under it. If it is executory, the law refuses to enforce it: Pittsburgh v Goshorn, 230 Pa., 212.

The general rule that unlawful contracts are enforceable at law, is grounded on reasons of public policy. This particular statute is intended for the protection of the public against the danger of doing business with parties whose real names and personal responsibility are not disclosed by the assumed name under which they act. Such statutes should, therefore, be faithfully enforced against offending parties even though sometimes, as in this case, the result may be that the other party may gain an undue advantage thereby.

This is an unavoidable incident of the enforcement of the law which results from its violation and might have been prevented by its proper observance.

Under the express terms of the Act of 1917, supra, and the numerous decisions of the courts construing and applying similar statutes, the contract in suit is, in our opinion, clearly void and unenforceable.

Now, to wit, December 15th, 1919, the motion for judgment for want of a sufficient affidavit of defense is overruled and refused.

NOTE—Vide Automobile Securities Co. v Forpaugh, 68 P. L. J. 12. — EDITOR

Lesle, a minor, v Catanzaro.

Negligence-CoastingAutomobile-Room for Both Vehicles-Jury.

It is not negligence per se for a girl eighteen years of age and acquainted with the character of the locality and its hazards to engage in coasting on a cartway of a street, so that a motion for judgment on the whole record for defendant after verdict for plaintiff who was injured by her sled colliding with defendant's automobile and the evidence would support the finding of the jury was refused.

The plaintiff was injured, while coasting, by her sled colliding with the automobile of the defendant, and recovered a verdict where the evidence showed that there was sufficient room in the cartway for both to have passed safely and after the accident the wheels of the automobile were found to be on the curb and blocking the way for plaintiff's sled. Conflicting testimony as to how this automobile came into that position was a question for the jury.

Motion ex parte Defendant for Judgment on the whole Record. No. 2059 January Term, 1917. C. P. Allegheny County.

R. P. & M. R. Marshall, for plaintiff.
Griffith & Kennedy and Arthur E. Young, for defendant.

Wasson, J., December 8, 1919.—This acton to recover damages for personal injuries grew out of a coasting accident which took place on Meadow Street in the Highland Park district of Pittsburgh after nine o'clock on the night of February 16, 1916. The plaintiff, a girl of eighteen and two companions a boy her own age and a lad of thirteen had gone to the crest of the hill on Heberton Avenue and were making their first trip down on one sled; they had crossed Stanton Avenue where Heberton ends and Meadow begins and had reached a point on Meadow fifty or sixty feet beyond when they collided with the defendant's automobile going in the opposite direction and the plaintiff was injured. Others were coasting at the time; there was little if any vehicle traffic; the street lights were burning and the night was not dark. The defendant was driving and he was alone in the automobile.

In passing from Heberton Avenue to Meadow Street there is a slight bend to the left occasioned by the fact that Meadow is located a few feet further to the East and does not come into Stanton at right angles as does Heberton.

At the point where the collision occurred, the cartway was obstructed on the East side by a pile of building materials extending out from the curb ten to fifteen feet and reaching well up to Stanton Avenue. From the obstruction to the West curb there was a clear passage, however, of from fifteen to twenty feet.

The evidence offered in behalf of the plaintiff would warrant a finding that the coasting party came down the middle of the cartway on Heberton Avenue, passed over Stanton to within a foot or so of the West curb of Meadow and were proceeding along parallel with the curb when the automobile from a straightened position close to the pile of building materials was suddenly turned in the direction of the West curb, running them down. Certain it is that after the collision occurred one if not both of the front wheels of the automobile was over the curb and the tonneau lay directly across the street. The sled and its occupants were under the front end of the machine. The evidence would further warrant a finding that the defendant from a point below the pile of building materials had an obstructed view along Meadow Street across Stanton and for some distance up Heberton and could easily have seen the approaching sled and also that between the Negley Hollow bridge at the end of the street over which the defendant came to the point of collision he had encountered

un

Lesle, a minor, v Catanzaro.

other sleds and therefore must have known that the street was being used for coasting. The defendant denied having met any other sleds and having had any knowledge that the street was being used for coasting purposes and contended that while he was driving as close to the pile of building materials as it was possible for him to drive, the sled coming at a great rate of speed suddenly plunged into the front of his machine and at that instant or just the instant before the collision occurred, he turned the machine to the left hoping to avoid a collision and that the sled and its occupants were thereby dragged over to the West curb.

Whether the defendant exercised the care required of him under the circumstances, we are not privileged to say, the evidence, and there is more than a scintilla bearing on the question of negligence, is conflicting and it is therefore a matter for the jury to determine. There was ample room between the West curb and the pile of building materials for the sled and the automobile to have passed in safety. They did not do so because either the sled was not running along the curb as the plaintiff's witnesses contended or the automobile was not sticking to its straightaway course next to the pile of building materials as the defendant testified.

And whether the plaintiff exercised such care and diligence to avoid danger as was required of her is also a matter for the jury. It is not negligence per se for a girl eighteen years of age and acquainted with the character of the locality and its hazards as she was to engage in coasting in the cartway of a street. It might be the duty of the Court under a given set of facts, not in controversy to pronounce coasting dangerous. But where the evidence is conflicting and the inferences to be drawn from it are not clear, the question is for the jury.

Feldman v Riccordino, 58 Sup Ct., 114.

After careful review of the evidence taken at the trial we are of the opinion that the motion for judgment should be denied.

In re Motor Licenses.

State Highway Commissioner

30, 1919.

-Loss of An Arm- Incapacity-Act of June

A license to operate a motor vehicle on the highways of Pennsylvania may be issued to a person who has lost his arm or any part thereof, provided such person has satisfied the State Highway Commissioner of the propriety of giving him a license.

OFFICE OF THE ATTORNEY GENERAL
Harrisburg, Pa.

December 18, 1919.
Mr. Benjamin G. Eynon
Registrar of Motor Vehicles,
State Highway Department,

Harrisburg, Pa. Dear Sir:

I have your letter of the seventeenth instant asking to be advised whether or not under Section 10 of Act No. 283, approved June 30, 1919, a person with but one arm is construed to be physically incapacitated or whether he can obtain a special license provided for by the said Section.

This Section of the Act referred to provides that certain persons shall not operate any motor vehicle upon any public highway in this Common

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