Koontz's administrator v. Howsare

Mr. Justice Sterrett delivered the opinion of the court October 2d 1882. The controlling question in this case is, whether an administrator or other person sued in a representative capacity, and [508] against whom a judgment has been rendered by a justice of the peace, on a claim for manual labor, has a right to appeal without making the oath, and giving the security prescribed by the first section of the act, entitled, “ an act regulating appeals from the judgment of justices of the peace and aldermen in this commonwealth for the wages of manual labor,” etc., approved April 20th 1876: P. L. 43. While the phraseology of the act itself is sufficiently comprehensive to include personal representatives, we thinli they aré not within its spirit, when it is properly construed in connection with previous legislation on the subject of appeals from justices of the peace; especially the general act of 1810, in which they are expressly excepted from the provisions requiring appellants to give security. These actsar sin pari materia, and should be construed together. We can readily understand why the legislature should require those defending, in their own right, against claims for manual labor, to make the affidavit and give security, not only for the cost, but also for the claim ; but it would be extremely difficult to assign a satisfactory reason for applying the same provision to those sued in a representative capacity, and previously exempt from giving security in any form. The reasons which induced the exception contained in the act of 1810, apply with greater force to the act of 1876 ; and in. the absence of a clearly expressed intention to the contrary, we are constrained to conclude, that the act does not apply to personal representatives. In thus limiting the operation of the act to those defending in their own right against the class of claims mentioned therein, we give it all the effect the legislature intended, and certainly all that it reasonably should have. This view accords with the construction given by this court to the act of July 26th 1842, P. L. 431, providing for appeals from Nisi Prius to the court in banc, which requires the party appealing to give absolute security for the payment of all damages and costs in case the proceedings were affirmed. In Maule v. Shaffer, 2 Barr 404, on a motion to quash an appeal taken by executors without giving security, it was held they were not within the act; and Mr. Justice Kennedy, referring to the 7th and 8th sections of the act of June 16, 1836, the latter of which exempts persons suing or defending in a representative capacity from giving security on a writ of error, says: u Whether the legislature had these sections of the act in view or not, at the time they gave the right of appeal from a judgment of the Court of Nisi Prius, we feel satisfied that they never could have intended to require an executor or administrator to give the security contemplated by the act of 1842. It would be most highly unjust and unreasonable to require such security of an [509] executor or administrator, who may have no assets of the estate in his hands wherewith to pay damages and costs. The inevitable consequence would be, in almost every case where a judgment shall be rendered against an executor as such, though highly unjust and illegal, that it would have to be submitted to.” It also accords with the judicial construction given to rules of court, requiring, in general terms, the filing of affidavits of defense. It has been uniformly held that they do not apply to persons defending in a representative capacity: Umberger v. Zearing, 8 S. & R. 163; Read v. Bush, 5 Binney 455. The reason given is that it is not to be supposed that an executor has sufficient knowledge of his testator’s affairs to justify him in making oath on the subject. M‘Connel v. Morton, 1 Jones 398, is cited as an authority on the other side. An examination of the case will show that there was in the act then under consideration an express exception in favor of personal representatives as to payment of costs and entering into recognizance, but it was silent as to the making of an affidavit. The court says : “ This exception does not embrace the making of the affidavit, and the old maxim is, that the exception proves the rule, that is, makes the general rule good so far as the exception does not reach.” More recently, in Murray v. Sharp, 22 P. F. Smith 360, it was held that executors and administrators may appeal from awards of arbitrators without payment of costs, or entering into recognizance, although they may have taken out the rule of reference. The order should be reversed on the first, third and fifth assignments. The remaining assignments are not sustained. The order of court striking off the appeal is reversed and set aside, and appeal reinstated.