Stahle v. Poth

Citations

• 220 Pa. 335
• 69 A. 864
• 1908 Pa. LEXIS 775

Syllabus

<p>Practice, C. P. — Parties—Partnership—Affidavit as to partnership— Rule of court — Trespass.</p> <p>A writ in trespass was issued against A. and B., trading as A. & Son. In the caption of the statement of claim and an amended statement of claim, the names of the defendants corresponded with those in the writ. In the body of the statements the averments were against “the defendants.” A general appearance was entered for the defendants, and their attorney filed a plea of not guilty, naming the defendants in the caption as they were in the writ and in the statements. Four trials followed, all of which were ineffectual. Thereafter the court granted a rule on defendant B., to show cause why plaintiff should not be permitted to proceed against him as the surviving partner of A. & Son, the death of A. having been suggested. On this rule the court made the following order: “ Rule absolute by agreement. See order filed.” Subsequently on the same day the court filed an order that “the death of A. having been suggested, the plaintiff is permitted by the court to enter a nolle prosequi, and discontinue the above suit as to the said A., and to proceed as against the said B.” A nolle prosequi was entered as to A. No affidavit was filed denying the existence of the partnership, as is required by the usual rule of court. At the final trial the court required the plaintiff to prove the partnership. Held, (1) .that the formal order making B., as an individual, the defendant, was a mistake apparent upon the face of the record, and unauthorized by any agreement of the parties; (2) that the-order making the rule absolute, made B. defendant as surviving partner; and (3) that it was error to require the plaintiff to prove the partnership.</p> <p>Negligence — Infant—Obstruction of sidewalk.</p> <p>In an action against the owner of a brewery to recover damages for personal injuries to a child nine years old, the case is for the jury where the evidence tends to show that the child was inj