Flanagan v. Duncan

Citations

• 133 Pa. 373
• 19 A. 405
• 1890 Pa. LEXIS 913

Syllabus

<p>(a) Flanagan brought an action against Duncan to recover, by way of contribution, a proportionate part of a judgment which had been rendered in a New York court against Flanagan, Duncan and others, and had been paid by Flanagan, and also a proportionate part of the expenses of the -suit in which it was rendered. The judgment was entered in 1887, in a suit commenced in 1874, upon a contract of the defendants therein, made in 1872.</p> <p>(£>) Duncan’s affidavit of defence averred that he was adjudicated a bankrupt in 1878 and received his discharge in 1881; that he was informed that the New York suit had been abandoned, but that nearly nine years after its commencement, without notice to or knowledge by the affiant, a supplemental complaint was filed, to which Flanagan made answer, and the suit was practically tried upon the supplemental complaint and answer so filed.</p> <p>(c) The affidavit averred, further, that Flanagan was represented in the New York suit by a law firm who undertook to appear for all the defendants and were aware of the bankruptcy proceedings ; that, subsequent to his discharge, Flanagan and the lawyers ignored the affiant and their duty to plead his discharge, while assuming to act for him, and that Flanagan renewed the proceedings in 1883, without the affiant’s knowledge and without giving him an opportunity to plead the discharge himself:</p> <p>1. As the averments in the affidavit of defence impugned the good faith of Flanagan in his conduct of the defence in the New York suit, and as a recovery upon the equitable principle of contribution can be had only when the plaintiff’s hands are clean, Flanagan was not entitled to judgment for want of a sufficient affidavit of defence; whether, aside from the question of good faith, the discharge in bankruptcy would bar the claim, not decided.</p>