C. & C. Electric Co. v. St. Clair , 182 Pa. 274 ( 1897 )

Opinion by

Mr. Chief Justice Sterrett,

Defendant’s averments, as to the partnership between him and John D. Allen, the other joint maker of the note in suit, and the appointment of a receiver, etc., are not only too vague and indefinite, but they are also immaterial. It is not denied that the two defendants, St. Clair and Allen, individually, are the joint makers of the note in suit, nor is it claimed that, as such joint makers, they have any meritorious defense to the payment thereof. If there be a receiver of the alleged firm, regularly appointed and qualified, and he is in anywise interested in this suit, he is doubtless competent to protect the interests thus committed to his care; but, so far as appears, he has no possible interest therein that can be made available to the defendants in this case or either of them.

The only properly assigned error that is worthy of even passing notice rests on the bald technicality that plaintiff’s statement contains no reference to the fact that the sheriff’s return, as to the defendant, John D. Allen, is “nihil habet,” etc. If the attention of the court below had been called to this at the proper time, an amendment would doubtless have been allowed, and the statement made to conform to the fact as shown by the record. There is no reason why it should not be done now with the same effect as if it had been done then. The amendment suggested by plaintiff company’s counsel is accordingly allowed and made nunc pro tunc. The only ground — technical or otherwise — on which the validity of the judgment against this appellant can be questioned being thus disposed of, the judgment against him impleaded with John D. Allen not served, etc., is affirmed.