Marks v. Willenski

Opinion by Rice, P. J., This is an appeal from a judgment for want of a sufficient affidavit of defense in an action upon an insolvent bond, in which the appellant, Adolph Mark, was surety, brought by IsraéNJ. Marks, the obligee in the bond. It appears that a judgment in an action of crim. con. was obtained against one Willenslai upon which a ca. sa. was issued by virtue of which Willenski was arrested. Thereupon he presented a petition and obtained a rule to show cause why he should not be discharged fro^n arrest upon his giving the bond in question. The petition and^proceedings were under sec. 5 of the act of 1901. The condition of the bond so far as material here was that he should appea'f on April 17,1905, and comply with all the requisitions of law, P and abide all the orders of the said court, in that behalf, or in default thereof, if he fail in obtaining his discharge as an insolvent debtor that he shall surrender himself to the jail of the sai^. county.” No formal order was made on [179] April 17th, but it is not denied that the petitioner appeared on that day and that a hearing was had. On April 19, 1905, the court made the following order: “ And now, April 19, 1905, the rule to show cause why the defendant should not be discharged from arrest heretofore granted, having been duly heard at the bar of the court upon the return day thereof, to wit: April 17, 1905, it is ordered that the said defendant surrender to the custody of the sheriff under the writ of capias ad satisfaciendum by virtue whereof he was arrested, and that he be held by the said sheriff in the jail of the county of Philadelphia for the term of thirty days from the date of his surrender, unless he shall before the expiration thereof pay to the plaintiff, Israel J. Marks, the amount of the j udgment obtained against him in this cause, together with interest thereon and the costs of suit; and it is further ordered that upon payment of the said judgment, together with the interest and costs as aforesaid to the said plaintiff, if said payment shall be made before the end of the said period of thirty days, or if not, then upon the termination of said period of thirty days, reckoned from the date of the surrender of the said defendant to the sheriff, the said defendant shall be discharged from custody and imprisonment.” Nothing further appears to have been done until April 25th, when this action was brought and the summons was served upon Mark the surety and returned nihil as to Willenski. It is alleged in the affidavit of defense that on April 27, 1905, Willenski immediately, upon being informed by his counsel of the foregoing order, surrendered himself to the sheriff and served an imprisonment of thirty days and has since been discharged by the keeper of the jail. It is argued that it was unreasonable to hold that the petitioner was. in default before he received actual notice of the order of April 19th. We can find nothing in the bond or in the order or in any statute relating to the proceeding to sustain this claim either as to the petitioner or the surety. It fails to give due weight to the fact that the petitioner for discharge under the insolvent laws is the actor in the proceeding and it is incumbent on him to take such action as will bring it to the conclusion the statute contemplates. Hence it has been held, as stated by Thompson, J., that “ when the order fixes a day for final hearing, the petitioner must ask for his [180] discharge, or if unable, from some mistake or omission, to have this, he must make his peace with the court, and get a continuance, or if not, and he would save his bond, surrender himself to jail. Either a discharge, or continuance, or surrender must appear to save the bond: ” McDonough’s Case, 37 Pa. 275. The same principle has been applied or recognized in Bartholomew’s Administrator v. Bartholomew, 50 Pa. 194 ; Rowand v. Smiley, 96 Pa. 165; Commonwealth v. Grimes, 116 Pa. 450, and other cases. The principle is applicable here. The petitioner did not obtain his discharge on the day of the hearing and did not surrender hiniself. If he had asked the court to designate a day for termination of the proceeding by formal order, and to continue the matter until that day, doubtless the court would have granted the request. But he had no right to assume that actual notice of the order would be served upon him. Not having moved for a continuance to a day certain he was bound to take notice of the order, as other litigants are bound to take notice of the entry of judgment and like matters. The order of April 19th, is criticised because it did not fix a day for the petitioner to surrender himself, and it is suggested that in the absence of that the condition of tire bond would be satisfied by a surrender within a reasonable time. The answer to this objection and claim is twofold: First, the validity of the order' cannot be brought in question in this collateral proceeding; second, the statute fixes forty-eight hours as the time and tins must be taken as if expressly included in the order. We are referred to Saunders v. Quigg, 112 Pa. 546, and other cases of the same class in which it is held that where an insolvent fails to obtain his discharge and voluntarily surrenders himself to the warden of the jail he complies with the condition of the bond and, though the warden refuses to receive him, his sureties are discharged. But in these cases there was a surrender or offer to surrender on the day the discharge was infused. They do not decide that the petitioner may relieve his surety by surrender at any time. In a case where the petitioner went to prison the following day it was held too late. Huston, J., who delivered the opinion of the court, said: “ I would not, for myself, divide a day, and say he must set out to jail the instant the opinion of the court was delivered; but it [181] must be on that day. If we allow surrender at any time after, at what point are we to stop; a weelt, a month or a year ? His return .to jail, then, was a useless, and, for all legal effect, a void act: ” Frick v. Kitchen, 4 W. & S. 30. The act of 1901, has modified this strict rule, but there are no grounds set forth in the affidavit of defense which relieved the petitioner from the duty to surrender himself within forty-eight hours after the order of April 19th was made, if he desired to relieve his surety. We find no error in the order entering judgment for want of a sufficient affidavit of defense. The judgment is affirmed.