Maneval v. Jackson Tp. , 141 Pa. 426 ( 1891 )

Opinion,

Mr. Chinn Justice Paxson :

If we treat this case as a rule in the court below to open the judgment, we would be compelled to quash the appeal. It was confessed in an adverse proceeding, and the opening of such a judgment is in the discretion of the court below. It is only where the judgment is entered upon a warrant of attorney or judgment note, that the act of assembly gives the right to an appeal from a refusal to open it. The case was argued at bar, however, as though the rule was to strike off the judgment, and, as that was the prayer of the petition upon which the rule was granted, we will treat it as such.

The suit was brought against the township of Jackson, appellant, upon a warrant or order drawn by the supervisors in favor of the plaintiff, upon the treasurer of the' township, for the sum of $600, and is expressed upon its face to be “ on account of borrowed money.” The writ having been served upon the supervisors, they appeared and confessed judgment for the amount of the claim. Subsequently, one Henry Antis, a taxpayer of the township, presented his petition to the court below, asking to have the judgment stricken from the record for the reason that the supervisors had no authority to give said order, or to borrow the money which it is alleged to represent. The prayer of the petition is that “ said judgment be stricken off, so that the said township of Jackson, through your petitioner, may come in to defend against the said claim,” etc.

A judgment which is regular upon its face cannot be stricken off except for fraud. It was contended for the petitioner that the judgment was void upon its face; that a supervisor has no authority to borrow money, and that a suit will not lie upon an order of this description. It may be conceded that, if it appear upon the face of the record that the judgment was unlawfully entered, it may be stricken off. If the plaintiff was seeking to recover upon the order, and the township were resisting it, we would have an entirely different question before us. The township is not resisting the claim; it confessed judgment therefor by its recognized officers. We do not assent to the proposition that the supervisors, knowing a claim to be just,, may not confess judgment. They are not bound to subject the township to costs, in a case in which they have no defence. Under such circumstances, we would not strike off a judgment for a mere technicality, even upon the petition of a taxpayer.

The allegation that a suit cannot be sustained upon a township order is a technicality. The township is as much protected by the judgment as though the plaintiff had brought suit upon the original indebtedness, and had offered the order merely as evidence of the debt. It has been said in some cases that an action does not lie on such paper; that it is neither a bill, note, check, nor contract, nor is it a satisfaction of the original indebtedness: Dyer v. Covington Tp., 19 Pa. 200; Allison v. Juniata Co., 50 Pa. 351. In each of those cases, however, the point decided was that interest could not be recovered upon such warrants. It has been expressly held that they are not negotiable, and that suit cannot be brought in the name of a subsequent holder thereof: First N. Bank v. Rush School Dist., 81* Pa. 307; Snyder Tp. v. Bovaird, 122 Pa. 442. I do not propose to discuss this question, however. It might have been a troublesome one had it been raised by the township, but this petitioner has no standing to raise technicalities, which do not go to the merits.

That supervisors have no general power to borrow money is conceded. Nor have they any implied power to do so, except when its exercise is necessary to enable them to perform their duties. They have no authority to borrow money for the ordinary repair of roads, but they may do so upon an extraordinary emergency, as where bridges are destroyed, and roads .rendered impassable by a flood. In such cases, their duty requires them to place both bridges and roads in a safe condition for travel. They must do it promptly, and are liable to indictment for neglect or refusal to do so; and if they have no money for such purpose they may borrow it. We think this principle is sufficiently recognized in Union Tp. v. Gibboney, 94 Pa. 534; Gibson v. Poor Dist., 122 Pa. 557. And if a precedent were necessary for so obvious a proposition we would make one.

This money appears to have been borrowed by the supervisors in good faith, to repair the roads and bridges injured or destroyed by the flood of 1889. This was a lawful purpose; and as there is no specific act of fraud charged, wo are of opinion the township is bound to repay the holder of this order the money he advanced. The right being established, the form of the transaction does not concern the petitioner.

Judgment affirmed.

On April 27, 1891, a motion for a re-argument was refused.