Commonwealth ex rel. Beatty v. Patterson

Opinion by W. D. Porter, J., John M. Patterson having been adjudged a lunatic, after regular proceedings in the court of common pleas of Lawrence. county, John Patterson was appointed his committee, and Janies Patterson became surety on the bond of said committee, which was in due form and regularly approved by the court. J ohn Patterson subsequently filed a final account as committee, and after exceptions were disposed of the court ascertained and decreed a balance in his hands of $2,789.10, after the payment of all costs, and said John Patterson resigned as committee; and the said John Patterson having resigned said trust, and Almatrim Beatty having been appointed and duly qualified as his successor in the trust, the court decreed that the said John Patterson, committee of John M. Patterson, pay over to the said Almatrim Beatty, committee of John M. Patterson, the sum of $2,789.10 aforesaid. J ohn Patterson paid over a part of the balance which had been adjudged against him, but made default in payment of the balance, and this action was brought by the committee to recover the amount still remaining unpaid. The action was commenced by scire facias but was amended, before trial, by changing the form of action to assumpsit. The first five specifications of error refer to the admission of the record of the proceedings in the estate of the lunatic. It was necessary for the plaintiff to establish the adjudication of lunacy, the appointment of the committee, the giving of the bond in question and the approval thereof by the court, the filing of the account by John Patterson, committee, and the adjudication upon said account. The record was the best evidence upon all of these questions, and the first five specifications of error are overruled. The sixth, seventh, eighth and ninth specifications of error are founded upon the rulings of the court in sustaining objec [141] tions to offers of testimony made by the defendant. These offers taken together simply amount to an offer to prove that John Patterson, the committee, never received a part of the money with which he was charged in his account as committee which had been adjudicated by the court. This was a final account and not a mere triennial statement, and the adjudication thereof by the common pleas was in the nature of a decree in chancery, had all the effect of a judgment, and is binding until reversed: Fuchs’s Case, 6 Whart. 190; Vincent v. Watson, 40 Pa. 306. The court had jurisdiction of the parties and of the subject-matter, and its decree is binding upon parties and privies and cannot be attacked collaterally: Warder v. Tainter, 4 Watts, 270; Yaple v. Titus, 41 Pa. 195; Knox v. Flack, 22 Pa. 337; Davidson v. Thornton, 7 Pa. 128. Even if the evidence had been inadvertently admitted, there being no allegation of fraud, it would have been the duty of the court to have struck it out, on motion. The sixth, seventh, eighth and ninth specifications of error are without merit. The tenth and eleventh specifications of error assert that the plaintiff’s declaration or statement will not support a verdict in favor of the commonwealth of Pennsylvania. The Act of June 14, 1836, P. L. 637, sec. 6, directs that in actions of this character the writ shall issue in the name of the commonwealth, and the names of the persons by whom the same shall be sued out shall be suggested as plaintiffs therein, and such persons shall be liable for costs. The commonwealth was necessarily the legal plaintiff, but in order to maintain the action it was not necessary to offer or to prove that the commonwealth had suffered injury. If the equitable plaintiffs, however, recovered anything, then, under the terms of the act, judgment must be entered in favor of the commonwealth in the amount of the penalty of the bond. The tenth and eleventh specifications of error are dismissed. The twelfth specification of error complains of the refusal of the court to affirm defendants’ fourth point, the point being as follows: “ The plaintiff’s declaration or statement does not allege any breach of any condition of the bond in evidence, and for that reason the verdict must be for the defendants.” This action was begun by scire facias upon the bond, and with the praecipe for scire facias was filed on behalf of the plaintiff, and [142] at his request, by an agent having knowledge of the facts, an affidavit, in which was set forth all the facts necessary to sustain an action, the appointment of John Patterson, the approval of his bond, with surety, the adjudication of his account and the order to pay over to his successor in the trust, his failure to pay over, and that he was insolvent. The action being by scire facias, this was not filed as a statement but as an affidavit, the affidavit alleging breaches. The defendants replied by affidavit and pleaded payment. On March 7, 1898, an order was made changing the form of action to assumpsit. In strictness there was no statement then upon the record, but the parties went on and treated the affidavit filed, in which the facts were set forth, as a statement. On April 13, 1898, the case was called for trial, whereupon, before the jury was sworn, defendants’ counsel asked the court to direct the plaintiff: to pay the costs in tfyis case up to the time of the allowance of the amendment. Counsel for plaintiff thereupon produced the receipt for the costs, and without further objection defendants permitted the jury to be sworn to try the issue. This was an acquiescence upon their part in treating the original affidavit as a statement. If they did not intend to so treat it, it was trifling with the court to permit the jury to be sworn to try the issue when the case was not at issue. If they had made the objection before going into a trial upon the merits, it ought to have been sustained, but having gone through with a trial upon the merits it is too late to raise a question of this character. If there was anything in the record, or any circumstances to suggest that they had been prejudiced in the trial upon the merits, or if they had said to the court at any stage of the trial that there was no declaration or statement in the case, and they had still been forced to go on, their assignment of error would have had merit. The points submitted by the defendants repeatedly refer to the plaintiff’s declaration or statement, but in none of them is a suggestion that there is no declaration or statement. The court had a right to assume that the parties had agreed to consider the affidavit filed at the beginning of the case as a declaration or statement. Accepting that affidavit as a statement, it contained all the allegations necessary to support the action. The twelfth, fourteenth and fifteenth specifications of error [143] are dismissed. Prior to the Act of May 25, 1887, P. L. 271, an action of assumpsit certainly could not have been maintained upon a bond of this character. But that an action of debt could have been sustained is also without doubt. The act of 1887 abolished the distinction existing between actions ex contractu and constituted the action of assumpsit, the remedy for all demands formerly recoverable in debt, assumpsit or covenant. To bring an action of debt upon a bond under our present practice would be irregular. The thirteenth assignment of error is without foundation. The plaintiff has negligently failed to file his declaration. The act of 1887 greatly simplified the practice of the law, but there is still a necessity that there should be some sufficient record in every proceeding. The defendants not having objected to the absence of the statement at the proper time, and having gone through with a trial upon the merits, in which the record demonstrates they were in no way prejudiced by the absence of the statement, we will allow it to be filed in this court. The plaintiff is granted leave to file a statement in proper form, including the averments of the affidavit filed upon the issuance of the scire facias, and thereupon the judgment will be affirmed.