First National Bank v. Furman

Opinion by Beaver, J., Thirteen defendants were included in the action of assumpsit brought by the plaintiff in this case in the court below. Of these ten were regularly summoned by the sheriff. As to three he returned the writ non est inventus. A general appearance was entered for the defendants. This brought them all into court as fully to all intents and purposes as if the summons had been regularly served by the sheriff upon all and duly so returned. This has been the universal practice in Pennsylvania, recognized and confirmed in Scott v. Israel, 2 Binney, 145, and later in Hatch v. Stitt, 66 Pa. 264. The defendants were, therefore, all in court, subject to its jurisdiction and each equally entitled to the rights of a defendant. Cyrus Furman, one of the defendants not served, made an affidavit of defense in which he distinctly alleged the forgery of his name to the note in suit. Brimegin, one of the defendants upon whom the process was served, alleges in his affidavit: “ This affiant is further informed and he believes it to be true that the name of Cyrus Furman to said note is a forgery and this affiant is advised by counsel that such a forgery is a just and legal defense for all of the defendants in the above entitled suit; and this affiant further states that he makes this affidavit of defense as much for all the defendants in this suit as for himself.” Similar affidavits were made by at least two other defendants who had been served with summons. Section 1, of Rule 18 of the rules of court of Tioga county is as follows: “ In all actions upon deed, bond, bill or other instrument of writing which has been declared on, and a copy whereof shall have been filed, within two weeks from the return day of the writ, it shall not be necessary for the plaintiff to prove on the trial, the execution thereof, or the handwriting of the drawers, acceptors or indorsers, of any bill or [424] note so declared on, but tbe same shall be taken to be admitted, unless the defendant shall at, or before, the time of filing the plea in such action, deny the execution thereof, or the drawing, acceptance or indorsement of such bill or note, by affidavit.” We have here a distinct denial of the execution of the note, so far as Cyrus Furman is concerned, first, by his affidavit, and, secondly, by the affidavits of Brimegin et al. The plaintiff, therefore, was bound, as the first step in his case, to prove the execution of the note. It was offered in evidence, without such proof, objection was made thereto by the defendants and the objection overruled and the evidence admitted. The defendants, having complied with the rule of court by denying the execution of the note in suit as to one of the defendants, were entitled to have such execution affirmatively proved. The first assignment of error is, therefore, sustained. The second and third assignments of error are also sustained. They relate to offers of evidence based upon the testimony of one of the defendants, Cyrus Furman, by which it was offered to be proved that the name Cyrus Furman signed to the note was a forgery; that there was no other Cyrus Furman in the vicinity of Gaines where the note was signed by the other. makers, and that the witness believed that the signature to the note was intended to be a forgery of his name and was in fact a forgery of his name and signature. We cannot understand the grounds upon which these offers were rejected. The court says: “We have allowed already to be given in evidence the note upon which this suit is founded but the note is not, as the record stands, and cannot be a charge against the defendant, Cyrus Furman, whoever he may be. It appears by the record he was returned not found; therefore he had no notice of any suit and is not directed to appear, and we are not to assume, because some individual of that name has appeared, that it is the individual in question whom the plaintiff seeks to' charge. It will be time enough for him to answer when he is summoned to appear and answer the plaintiff in this case. The judgment upon the issue tried by this jury cannot in any manner affect any Cyrus Furman, either this or any other, because there has been no service upon any Cyrus Furman. The court cannot undertake to determine this question of identity in this way.” But Cyrus Furman was in court. He had appeared by attorney. [425] He had filed his affidavit of defense. He was present at the trial. So far as the record shows, his rights were then being determined by the jury. He had run the risk of having a judgment entered against him and of being made liable for costs. He was entitled to his rights as defendant as if he had been regularly summoned by the sheriff. If the same man had been summoned by the sheriff, he would have been no more really in court and subject to its jurisdiction than by the appearance for him by his attorney. If he was not the man whom the plaintiff intended to summon by his prsecipe, his name should have been stricken from the record upon.formal motion and the record should show affirmatively that the jury was not sworn as to him, or the plaintiff could have been permitted to show in rebuttal that the Cyrus Furman named in the prsecipe and the Cyrus Furman who appeared were not the same person. The testimony should have been admitted. The fourth and fifth assignments of error are not sustained. It is admitted that the note is not dated on Sunday. The offer made by the defendant Brimegin was to show that his signature was affixed to the note on that day and delivery made to the payees. He could not be allowed to contradict the express written contents of the note. It is not alleged that the contract was made on Sunday, or that the plaintiff had any notice of the note having been signed on that day. If the plaintiff was a holder for value before maturity, he took a note dated on a business day bearing the signature of this defendant. He had a right to presume that the note was signed, as its date indicated, and the defendant is estopped from denying that it was signed and delivered otherwise. The statement in this case is insufficient, under the act of 1887, for the reasons set forth in Newbold v. Pennock, 154 Pa. 591. There«is no allegation of delivery nor is it alleged that the plaintiff is a bona fide holder for value, without notice. The statement would, doubtless have been held insufficient upon demurrer. The defendant, however, chose to have the case determined upon its merits and set out in the affidavit of defense such facts as would make a case of fraudulent circulation of the note, if proved, the effect of which, as intimated in Newbold v. Pennock, supra, was “ to put the plaintiff on proof' of bona fide holding.” The effect of an affidavit, as we have often held, is to [426] prevent the plaintiff from talcing judgment by default, but he is doing so in effect, if upon a trial he is allowed to take judgment simply by the production of the note, notwithstanding the affidavit of the defendant that the note was fraudulently uttered and circulated. If the plaintiff’s title to the note hi suit was not sufficiently set out in the statement, he would not have been permitted upon objection, as the parties to the action stand, to have introduced the note in evidence, even if no affidavit of defense had been filed, and much less was such a course permissible when the affidavits of defense charged not only a forgery as to one of the makers of the note but fraud as to its circulation. The court below seemed to be of the opinion that to put the plaintiff upon proof of his title to the note was accepting the contents of the affidavits of defense as evidence in the case. Such, however, was not the effect of the affidavits. They were evidence of nothing on the trial and could do no more than put the plaintiff to proof of the execution of the note and his title to the ownership thereof. The sixth assignment of error is, therefore sustained. It follows that the seventh assignment must also be sustained. As the case stood, the court was not justified in directing the jury to find a verdict'for the plaintiff. In dismissing the motion for a new 'trial the court below made the following order: “It is ordered that judgment be entered on the verdict in favor of the plaintiff against the defendants served and against them only.” By what authority the court made this order we are at a loss to discover. The jury was sworn generally and a verdict rendered for the plaintiff. We are bound by this record. The opinion of the court in denying the motion in arrest of judgment and for a new trial is not a part of the record of the trial, and the statement therein contained that “ The plaintiff did not seek to charge any Cyrus Furman as a defendant, repudiated the appearance of the Cyrus Furman who filed an affidavit of defence and stated at the trial that the cause should go to the jury only on the issue joined with the defendants served and not as to the three other defendants not served, among which latter was Cja’us Furman, and, without objection, the jury was sworn accordingly,” is not sufficient to contradict the record of the trial which upon its face shows that the jury was sworn generally and delivered a [427] general verdict. This record, without more, would undoubtedly sustain a judgment against all of the defendants. If the jury were sworn only as to the defendants served, that fact should affirmatively appear in the record of the trial. Inasmuch as it does not so appear, the court was in error in making the decree complained of in the eighth assignment of error. The judgment for the reasons herein set forth is reversed and a new venire awarded.