Lancaster County National Bank v. Henning , 171 Pa. 399 ( 1895 )

Opinion by

Mb. Justice Mitchell,

The cases of Hogg v. Orgill, 34 Pa. 344, and Reiter v. Fruh, 150 Pa. 623, appear to have escaped the notice of counsel as well as of the court below. In the former it was expressly held that under a rule of court substantially the same as that in the present case, a denial in the affidavit of defense was a sufficient affidavit, within the rule to put plaintiff to the proof of execution of the note. And in Reiter v. Fruh, the same effect was given to the denial of partnership in the affidavit of defense, and it was said, referring also to Adams v. Kehoe, 1 Weekly Notes, 232, that Hogg v. Orgill had settled the construction of the rule, and the practice under it. While this court usually accepts the construction by other courts of their own rules, yet in the case of a rule like the one under discussion, which is of quite general existence throughout the state, to permit a different construction from that twice expressly given to it in this court would do great injustice to parties who might rely on the settled practice.

It is true that in Reese v. Reese, 90 Pa. 89, Mr. Justice Tbunkey uses the expression that “ filing an affidavit of defense is not the requisite notice to put a party to proof of execution of the writing.” But that was no part of the ground of decision, and was not intended to be so taken, or indeed to be considered as of any importance, as appears from the words which follow in the same paragraph, “ it would be an extreme case which would require reversal because of error in admitting a writing without preliminary proof of signature, when in a subsequent stage of the trial- positive evidence was given of its execution.” He then proceeds to consider the substantial questions in the ease, on which finally-the judgment was reversed. Hogg v. Orgill was not cited in that case, and we may certainly conclude that if it had been tbe expression now relied on by appellee would not have been used.

It was error therefore to admit the note sued on in evidence without due proof of its execution, and this would include proof of the authority to make it at the time it was made.

Henning was a competent witness, He was not within the exceptions in clause (e) of sec. 5 of the act of 1887, “ nor where any party to a thing or contract in action is dead .... and his right therein has passed .... to a party on the record who represents his interest .... shall any surviving party to the thing or contract .... whose interest shall be adverse .... be a competent witness,” etc. The rights of the alleged partner, deceased, had not passed to the plaintiff. It did not represent his interest in the note in suit, but was claiming adversely against his interest as well as against Henning. Nor was Henning’s interest adverse to that of his deceased partner, in this suit. The note was sued on as a firm note. Henning was called to testify that it was not made by the firm, and therefore his testimony was in exoneration of both partners, so far as the present action was concerned. If the interest of the deceased partner should be incidentally affected by the testimony, not as a partner but by virtue of an individual act in another capacity, that would not render Henning incompetent. The interest of the deceased would he in the question, not in the immediate result of the suit. His representative was not party to the suit and the judgment could not operate upon his rights one way or the other: Dixon v. McGraw, 151 Pa. 98.

Judgment reversed and venire de novo awarded.