Perth Amboy Terra Cotta Co. v. Wood

Citations

• 124 Pa. 367
• 17 A. 4
• 1889 Pa. LEXIS 1042

Syllabus

<p>(а) Green executed a note under seal, with warrant of attorney to enter judgment, signing thereto the name of a copartnership and his own name, upon which note judgment was confessed andan execution issued and levied upon the copartnership property.</p> <p>(б) Wood presented his petition setting forth that he was a member with Green of the copartnership defendant, and that neither the copartnership nor himself was indebted to the judgment plaintiff when the note was made, praying that the judgment he opened and for an issue.</p> <p>(o) The court did not open the judgment but stayed the execution and ordered an issue to try: (1) whether Wood and Green were partners in the defendant firm when the judgment was confessed, and (2) if so, what if anything was due by said firm upon the judgment so confessed.</p> <p>(fi) Upon the evidence submitted on the trial of the issue, and under binding instructions from the court thereon, the jury found that the co-partnership existed at the time referred to, and that there was nothing due on the judgment.</p> <p>1. In such ease, as the court below did not open the judgment nor refuse to open it, it was manifest that no appeal lay at the suit of the judgment plaintiff, under the act of April 1,1877, P. L. 53: JenkintownN. Bank’s App., ante 337, followed.</p> <p>2. The issue framed was merely to inform the conscience of the court upon the particular facts embraced in it, was not to be measured by the strict rules of an ordinary jury trial, and the court might thereafter open or refuse to open the judgment, notwithstanding the verdict.</p> <p>„3. And, as there was sufficient evidence to show that AVood and Green were copartners in the judgment defendant firm, the judgment confessed by Green in his own name and in that of the cojiartnership bound no one but himself.</p>