Fees v. Shadel

Opinion by Orlady, J., This is an appeal byE. F. Phillips from an order of the court of common pleas discharging a rule taken to show cause [195] why certain judgments should not be stricken off, and why all subsequent proceedings thereon should not be vacated. E. F. Phillips became the purchaser, at a sheriff’s sale, of a general store, which had been owned and conducted by Matilda Shadel, and placed her son, Joel Shadel, in charge, as his agent, to continue the business until all the debts for which he had become responsible were paid in full, after which time Joel Shadel was to be the owner of the store. No written authority was given to Joel Shadel, and the business was conducted in his name “ as agent ” for an undisclosed principal, though a number -of persons who sold goods to Joel Shadel, as agent, knew that E. F. Phillips was the owner of the goods in the store. The business was conducted in this way for some time when Joel Shadel, individually and as agent, confessed a number of judgments to persons who were creditors of that business, and in some cases included his personal indebtedness in the amount of the note. On these judgments executions were issued and the property in the store was levied upon. In two of the judgments B. F. Fees was legal plaintiff, and in the third the use plaintiff. ■ At the time the sale was held on these executions E. F. Phillips was present and participated in the bidding, although he had requested the sheriff to postpone the sale until he could take some steps to protect his interests. Subsequent to the sale he presented a petition to the court, setting forth the facts, and secured a rule to show cause why the three judgments mentioned should not be stricken off or vacated. These rules were discharged and the order of the court is made the basis of this appeal. An examination of this record shows that this appellant is not a party to the judgments as they appear of record in the court below. Their validity is not questioned by the defendant therein, nor is it denied that he had such a title to the goods taken in execution as would warrant the plaintiff levying upon and selling them. As to the judgments the appellant was neither plaintiff nor defendant and had no standing before the court to interfere with process issued thereon. No man can make himself a party to pending litigation between others by his own act or statement on the record: Young, Smyth, Field & Co. v. Levy, 6 Pa. Superior Ct. 23. Since Phillips permitted Shadel to continue the business and [196] to secure goods for the store there is no reason in law or in equity why the undisclosed principal should be permitted to intervene and prevent the distribution of the fund raised by their sale under regular process. It is an elementary principle, that acts of an agent within the scope of his ostensible, but in expess of his real, authority are binding upon his principal as to third persons who have relied upon the agent’s possessing such authority as he appears to have: Thrall v. Wilson, 17 Pa. Superior Ct. 376. The allegation of fraud is of so general and indefinite a character as not to warrant the court in setting aside process regular on its face. Furthermore E. F. Phillips did not make claim to the goods at the time of the sale, and permitted them to be sold as the property of Joel Shadel, agent, and of Joel Shadel. The judgments and process issued thereon being regular, the parties thereto are the only ones who have any interest in the distribution of the funds raised thereby, and they cannot be attacked in this collateral way: Wilkinson’s Appeal, 65 Pa. 189; Levan v. Millholland, 114 Pa. 49; Weaver v. Adams, 132 Pa. 392; Hanika’s Estate, 138 Pa. 330. It would be highly irregular in such a summary proceeding to vacate and strike off judgments, which are regular on their face, on the petition of one who had no record interest therein. The order of the court below is affirmed.