Strause v. Braunreuter , 14 Pa. Super. 125 ( 1900 )

Opinion by

Rice, P. J.,

This was an action upon a joint promissory note executed by Adam Braunreuter and Elise his wife. Adam died in August, 1895. Afterwards Elise pleaded the general issue and coverture and on the trial of that issue verdict was rendered against her. On appeal the judgment was reversed because the court had erroneously refused to let her testify: Strause v. Braunreuter, 4 Pa. Superior Ct. 263. After the return of the record to the court below, the plaintiff suggested the death of Adam and issued a scire facias to his administrator to show cause why he should not be made a party defendant. The administrator filed an answer in which he objected to being made a party, because, (1) “ the parties thereto would not be similar to those in the case in which a venire facias de novo was awarded; (2) the purpose of the plaintiff in making him a party was to make Elise Braunreuter an incompetent witness ; (3) he had no defense to the action.” “ Literally and strictly, upon the death of a party to the record, jointly sued with others, the further progress of the action against his estate is the same as if he had been sued separately. A liberal construction of the statute” (Act of March 22, 1861, P. L. 186) “permits the plaintiff to bring in the executor or administrator, and proceed against him and the survivor at the same time to judgment:” Ash v. Guie, 97 Pa. 493; Dingman v. Amsink, 77 Pa. 114; Githers v. Clarke, 158 Pa. 616. We are of opinion, therefore, that none of the objections set up in the administrator’s answer was sufficient to prevent the plaintiff from bringing him in and making him a party to the action. But be accompanied this answer with a paper in which he appeared, quoting therefrom, “ to the scire facias to show cause why he should not be made a party defendant to the action of plaintiff founded upon a certain note of which Adam Braunreuter is the maker and Elise Braunreuter is the security ” and confessed judgment in favor of the plaintiff “for the sum of $750 with interest from September 17, 1894,” the full amount of the plaintiff’s claim. Later, the court filed an opinion in which it was held that the foregoing confession of judgment was premature and irregular because it was entered before the formal order substituting the administrator bad been made. The court thereupon made the order of substitution, and it would seem from the docket entries, although the order is not printed, struck off the confession. We remark in passing that the paper filed by the administrator might properly be regarded as sufficient to give the court jurisdiction and to validate the judgment against the estate although no formal order of substitution has been made at that time. In view, however, of the subsequent proceedings, the ruling that it was premature becomes unimportant. Not discouraged by the obstacles interposed to prevent him from confessing the action and giving the plaintiff what he asked, a judgment, the administrator followed the suggestion made in tbe opinion of the court below and again confessed judgment for the full amount of the plaintiff’s claim. This he.undertook to liquidate by adding the interest to date of confession and confessing judgment for the gross sum together with interest thereon from date of confession. This was not satisfactory to the plaintiff, and he thereupon moved the court to strike off the confession “for the reason that it is illegally confessed and will deprive the plaintiff of his just rights in this case if allowed to stand,” and also moved for a rule on the administrator to plead. The administrator filed an answer in which he said, inter alia, “ that having no available defense to make to the action, instead of proceeding to trial and incurring expenses which he has no funds to defray or of allowing judgment to pass against him by default, he has given the plaintiff a written confession of the action, and filed tbe same of record after the order made by the court March 9, 1898, for the substitution of the administrator and agreeably to the said order of court. That this confession is given before and without any piba,, for the amount of the entire claim of the plaintiff as set out in his statement. That an arbitrary and illegal power is attempted to be invoked by the plaintiff to compel the administrator to plead, for which there is no warrant in law, justice or reason, as the administrator has no plea to plead; that the statutory pleas by him to the action would be untrue and unfair to the court and himself and that he has an indisputable right to confess the action.” The learned judge very properly took the same view and refused to strike off the confession or to compel the administrator to plead» He held, however, that the liquidation of the judgment before the determination of the issue between the plaintiff and Elise Braunreuter was premature, and therefore, made the following order: “ And now, June 29,1898, the confession of judgment of March 17, 1898. is allowed to stand as an interlocutory or general confession of judgment for the full amount of the plaintiff’s claim described in his declaration, the amount thereof to be liquidated upon the trial of the issue against Elise Braunreuter.” In view of the answer of the administrator, the court was perfectly justified in thus treating the confession. See O’Neal v. O’Neal, 4 W. & S. 130. And, at any rate, as the plaintiff did not except to the order and as it never was rescinded, it is perfectly proper to say that when the ease was called for trial the record showed a general judgment against the administrator for the full amount of the plaintiff’s claim as set forth in his statement. Such being the state of the record, and the counsel for Elise Braunreuter who were also counsel for the administrator of Adam Braunreuter objecting, the court directed the jury “to be sworn generally,” by which we understand they were sworn as if Adam Braunreuter was a party to the issue. This was both improper and unnecessary — improper because the statute provides that the jury shall be sworn to “ try the issue joined,” and there was no issue joined between the plaintiff and the administrator; improper further because the manifest purpose of the plaintiff in insisting on having the jury sworn in that way was to close the mouth of the defendant in the issue, and unnecessary, because opon a verdict being rendered against the defendant in the issue the court .could have entered the proper final judgment against both defendants. Where judgment by default or by confession is entered against some of the defendants and the issue is tried as to the others, final judgment is entered against all upon the verdict. The reason is obvious ; the judgment by default or by general confession being for the whole cause of action contained in the declaration the damages then become a matter solely for the court. A writ of inquiry is necessary only to inform the conscience of the court, who may in all cases dispense. with it if they think proper. It is on this ground, that in all cases where the damages may be ascertained by calculation, it is referred to'the prothonotary to liquidate them: O’Neal v. O’Neal, 4 W. & S. 130; Noble v. Laley, 50 Pa. 281; Weikel v. Long, 55 Pa. 238; Campbell v. Floyd, 153 Pa. 84, 96, 97.

Was the defendant, Elise Braunreuter, harmed by the ruling complained of ? She certainly was, if she would have been a competent witness upon the trial of the issue as made by the pleadings and was rendered incompetent by the swearing of the jury as if the administrator was a party to the issue. It is to be observed, that, from the outset of the proceedings to make him a party, the administrator contended that Elsie Braunreuter was a surety on the note in suit; therefore, though her testimony might avail to prevent judgment against her it could not affect any right of the deceased party which had passed to his administrator or to the plaintiff. Again, the testimony she offered to give could in no way affect the plaintiff’s judgment against the administrator. Her defense was personal to herself. If the jury had been sworn to try the issue joined between the plaintiff and Elise Braunreuter and had rendered a verdict in her favor, still the confession would have been unaffected, and after liquidation, which involved only a calculation of interest, the plaintiff would have had a judgment for the full amount of his claim. In the issue joined “ the subject in controversy, ” the “ thing or contract in action ” was the contract liability of Elise Braunreuter. No right of Adam Braunreuter, the deceased party to the note, was involved, directly or indirectly. She had no interest adverse to any such right which had passed to the plaintiff, and in view of the confession of judgment by the administrator and his solemn admission of record in connection therewith, she had no interest adverse to any right of the deceased party to the note which had passed to the administrator. Under these circumstances we think she was a competent witness in the issue joined. See Bank v. Henning, 171 Pa. 399, Trymby v. Andress, 175 Pa. 6, and Rine v. Hall, 187 Pa. 264.

The degree of diligence to be used in tbe search for lost papers before secondary evidence can be given of their contents must depend largely upon the circumstances of the case. The loss or destruction of the document need not be proved beyond the possibility of mistake. As stated by a learned writer: “ It is not necessary to prove exhaustively that the paper exists nowhere. It is sufficient if the party offering parol proof show such diligence as is usual with good business men under the circumstances: ” 1 Whar. Ev. sec. 143; Jones, Ev. sec. 213. The inquiry is of a preliminary nature and is addressed to the discretion of the trial judge. When he is satisfied with the proof the appellate court will not reverse unless such proof is manifestly insufficient: Gorgas v. Hertz, 150 Pa. 538. We cannot say that the search for the note, under all the circumstances, was manifestly insufficient. Therefore, we do not sustain the fourth assignment. But as the case is to go back for a retrial we remark, that the proof would have been more satisfactory, if the plaintiff, the rightful custodian of the note, had been examined.

There was error in swearing the jury generally, as if the administrator was a party to the issue joined, and in excluding the defendant as a witness. For these reasons the case must be sent back for a retrial.

The judgment is reversed and a venire facias de novo awarded.