Stout v. Quinn

Opinion by Rice, P. J., This is an attempt to bring up for review on one appeal the records in three separate proceedings, in each of which a final judgment has been entered. The first is a judgment on a verdict in an action of trespass against Michael J. Quinn and John M. Quinn. They complain of certain instructions given to the jury on the trial of the ease, but as no exception was taken to the charge, or request made to have it filed, before verdict rendered, and as the trial judge has declined to certify the transcript of the stenographer’s notes, these assignments of error could not be considered even if the appeal from the judgment were regular: Curtis v. Winston, 186 Pa. 492. In the same proceeding one of the defendants complains of the refusal of the court to quash the ca. sa. issued simultaneously with a fi. fa. upon the judgment. But as his motion was not made until after the writ had been returned and the defendant had been discharged upon his giving bond to appear and apply for his filial discharge under the insolvent laws, and not until after a hearing had been had on his petition and it had been refused; nor until [184] after the bond given in that proceeding had become forfeited, and suit had been brought upon it, it was then too late for him, or his surety to question the legality of the arrest upon the ca. sa. upon the grounds set forth in his affidavit: Winder v. Smith, 6 W. & S. 424; Johnston v. Coleman, 8 W. & S. 69. The second proceeding attempted to be brought up for rehearing grows out of the joint petition of the two Quinns for discharge under the insolvent laws, and the error assigned is the dismissal of their petition. No exception was taken to this order, and the original petition and schedules have not been printed, so that we are unable to say whether or not the plaintiff’s objections thereto, and to the regularity of the proceedings are well founded. If the petition was dismissed because in the judgment of the court the evidence given on the hearing showed that the petitioners were not entitled to be discharged, the decision is conclusive and not reviewable here; the evidence given on the hearing does not come up with the record: Owen’s Appeal, 140 Pa. 565. The third proceeding referred to was an action upon the insolvency bond in which judgment by default was entered against the two Quinns and judgment for want of a sufficient affidavit of defense was entered against Hutchinson, their surety. As we have already suggested he is not in a position to assail the legality of the arrest under the ca. sa., and none of the other reasons assigned to prevent judgment requires particular notice except that which relates to the breach of - the condition of the bond. The condition of the bond was that if the petitioners failed in obtaining their discharge as insolvent debtors they would surrender themselves to the jail of the county. They did not obtain their discharge, and instead of surrendering themselves to the county jail they appeared at the bar of the court, and through their counsel made application for an order to commit them, which order the court refused to make. This was not a compliance with the condition of the bond. They had not undertaken to obtain an order of court for their commitment, nor was their obligation to surrender themselves conditioned upon such an order being made. Nor was it essential to the exercise of their right of surrender: Marks v. Drovers’ National Bank, 114 Pa. 490. On the-refusal of the court to discharge the petitioner it is his duty to surrender himself to prison [185] in discharge of his bail, “ and this without any order of court for that purpose: ” Heilner v. Bast, 1 P. & W. 267. “ The practice,” said Mr. Justice Black, “ which prevails at some places, of noting on the record, that the debtor has appeared and expressed his willingness to surrender himself in discharge of his surety, may be a convenient one, and therefore ought to be encouraged, but the law does not make it necessary; such a record, not followed by an actual and voluntary surrender would leave the bond in full force, and a surrender, though not recorded, would be a perfect performance of the condition: ” Mullen v. Wallace, 2 Grant’s Cases, 389. If the jailer will not receive him when he offers to surrender himself in good faith, he is not in default: Saunders v. Quigg, 112 Pa. 546. But he cannot set up a mere report, coming from no authorized source, that the keeper of the jail would not receive him without a commitment, as an excuse for not complying literally with the condition of his bond. It will be observed that Hutchinson was not a party to the record in the first two proceedings referred to, and had no interest in common with the other parties thereto. It was error to combine in one appeal these independent and collateral proceedings in which only two of the appellants are concerned with the judgment on the bond in which the three appellants are defendants. So far as the appeal and the assignments of error relate to the former proceedings, the motion to dismiss must prevail. We are not prepared to say that it was error to take out a joint appeal in the name of all the defendants from the judgment on the bond See Fotterall v. Floyd, 6 S. & R. 315. The first four assignments of error, and the appeal, so far as it relates to the judgment in the action of trespass and the proceedings on the petition for discharge under the insolvent laws are dismissed. The fifth assignment of error is overruled and the judgment in the action on the bond is affirmed.