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Estate of Frederick P. Ohlweiler, Deceased

posed this, denying his right to a division, alleging he had forfeited it by reason of having deserted his wife for more than one year previous to her death.

Held that "the husband was incompetent to testify to any matter occurring between him and his deceased wife and did not come within the exception applying to controversies between parties claiming by devolution on the death of the owner of the property, as the husband claimed by devolution, while the daughter claimed under the will, which is purchase." Phillips' Estate, 271 Pa., 129.

And now, to-wit, July 31st, 1922, the exceptions are sustained, the appointment of appraisers vacated and their appraisement set aside.

ROBINSON VS. SCHEALL

Judgments-Validity-Parties not of record.

A person not a party to the record has no standing in law or equity to question by petition the validity of a judgment in per

sonem.

Rule to open judgment, No. 891 May Term, 1921. C. P. Erie County.

Reed, Wait & Spofford for Plaintiff.

HIRT, J., August 11, 1922.

Judgment was entered on a bond admittedly signed by defendants. After execution was issued and levy made against certain real estate, Milan L. Scheall presented his petition alleging that he is the owner of said real estate and that the defendants in the above judgment have no interest

Robinson vs. Scheall

therein, and for these reasons asks that he be permitted to intervene as party defendant and that the judgment be opened to allow petitioner to enter his defense.

The action in which judgment was entered is not in equity and, therefore, the law as to indispensible parties, cited by petitioner's counsel, does not apply. This judg

ment is in personem and not in rem, and a person not a party to the record has no standing in law or equity to question by petition the validity of a judgment in personem. The purpose of this proceeding is to establish the fact that a deed purporting to have been executed by Milton L. Scheall conveying the premises levied upon to Francis C. Scheall, was in fact a forgery, and we are convinced that the question as to the validity of that conveyance cannot be determined in this proceeding. Admittedly the instrument on which judgment was confessed was executed by defendants and defendant, Francis C. Scheall, received the consideration named therein. The judgment, therefore, is a valid judgment against these defendants.

The case of Gaehring vs. Haedrich, 8 Sup. Ct., 507, is identical in principle with the case at bar and it was there held "This is a novel application. It seems sufficient to say that the appellant was not a party to this record, and has no standing in law or in equity to question the validity of the judgment. If, as he contends, the property standing in the name of the defendant in the judgment in reality belongs to him, his remedy for the seizure of it in satisfaction of the judgment is not in this form. Therefore the court committed no error in discharging his rule."

And now, to-wit, August 11, 1922, the rule granted August 30, 1921, upon petition to open judgment is discharged.

COMMONWEALTH V. MACINTIRE

Judgments-Summary Conviction-Practice.

In a summary proceeding insufficiencies in the complaint as well as the failure of the warrant to set forth a violation of the law in sufficient language, cannot be taken advantage of by the defendant after his appearance without objection.

The judgment of the magistrate must stand on the facts as found by him and is not to be sustained because of the evidence which has been sent up with the record, but is no part of it.

Certiorari, No. 92 February Term, 1922. C. P. Erie

County.

H. L. Moore and A. E. & S. A. Sisson for Plaintiff.

Brooks, English & Quinn for defendant.

HIRT, J., July 31, 1922.

This case is here on certiorari from the magistrate's court. Defendant, Howard H. MacIntire, was found guilty of a violation of Sectioin 100 of the Act of July 28, 1917, P. L. 1215, and was sentenced to pay a fine of one hundred dollars and the costs of prosecution, or in default to serve one day in the county jail for each dollar of fine imposed.

To support a summary conviction "there must be an information or charge against the person, then he must be summoned or have notice of such charge and have an opportunity to make his defence; and the evidence against him must be such as the common law approves of, unless the statute expressly directs otherwise; then if the person is found guilty there must be a conviction, judgment and execution, all according to the course of the common law, directed and influenced by the special authority given by the statute; and in conclusion there must be a record of the whole proceedings, wherein the justice must set forth the particular manner and circumstances, so as if he be called to account for the same by a superior court it may appear that he has conformed to the law, and not exceeded the

Commonwealth vs. MacIntire

bounds prescribed to his jurisdiction." Commonwealth vs. Borden, 61 Pa., 272.

The information contains a complete statement of the offence and in explicit language charges a violation of the above act of assembly on the part of the corporation by its superintendent. While the charge is a violation of the law by the corporation, yet the complaint asks for a warrant directed to Howard H. MacIntire, superintendent, only, and in response thereto he appeared for himself personally and not for the corporation. The appearance of the corporation might have been secured to answer the charge. Comm. vs. Lehigh V. R. R., 165 Pa., 162, and why after charging a violation of the law by the corporation it was not brought in as defendant, does not appear. However, if there be vital defects in the complaint, these insufficiencies have been cured as to the above defendant by his appearance; so also, the failure of the warrant to set forth a violation of the law in sufficient language is immaterial after the appearance of the defendant without objection. Comm. vs. Burkhart, 23 Pa., 521.

The transcript indicates that witnesses were sworn on behalf of the commonwealth, but does not contain a finding of fact from their testimony justifying the conclusion that the prohibited acts had been done by defendant. The transcript shows barely that defendant "is adjudged guilty and is sentenced", etc. It is true that the testimony taken at the trial has been sent up with the record, but on certiorari, testimony is not a part of the record. Comm. vs. Gipner, 118 Pa., 379. And we are not permitted on certiorari to examine the testimony to ascertain whether or not the conclusion of the magistrate is supported by evidence, and in effect to re-try the case on the merits.

Summary convictions are in derogation of the right of trial by jury and the duty rests upon the court to see to it that none of the safeguards thrown around the citizen for his protection are denied. The technical formalities of an old summary conviction, for various reasons, have been relaxed to some extent in modern practice. "But it is still

Commonwealth vs. MacIntire

essential that a summary conviction shall contain a finding that a special act has been performed by the defendant; that it shall describe or define it, in a way as to individuate it and show that it falls within an unlawful class of acts. Without this a judgment that the law has been violated goes for nothing. Now this is not merely a formal or technical rule of summary convictions, but a most essential and substantial one." Comm. vs. Nesbit, 34 Pa., 398; Comm. vs. Davison, 11 Pa. Sup. Ct., 130. The judgment of the magistrate must stand on the facts as found by him and is not to be sustained or overthrown because of the evidence which has been sent up with the record, but is no part of it. Comm. vs. Ayers, 17 Pa. Sup. Ct., 352. To the same effect is Laverty vs. Comm., 4 Pa. C. C. 137; Comm. vs. Clauss, 18 Pa. C. C., 381; Comm. vs. Seibert, 26 Pa. C. C., 378.

And now, July 31, 1922, defendant's fifth exception is sustained and the judgment is reversed.

VOLTZ V. COUNTY OF ERIE

Taxation-Assessors-Duties of-When duties shall

be performed-Payment for.

The plaintiff being an assessor whose term expired the first Monday of January, 1920, succeeded himself in office and continued his work from 1919 into 1920. It was contended that plaintiff was not authorized to proceed and do any of the work in 1920 which he should have done in 1919. Held, while the work for 1920 taxes was commenced and the triennial and assessment completed in the latter part of 1919, there is no law that would prevent the legally qualified assessor for 1920 from performing the uncompleted duties relative to 1920 tax in the year 1920 (except the triennial or reassessment); hence, the plaintiff is entitled to recover in full.

Rule for judgment n. o. v., No. 449 February Term, 1921. C. P. Erie County.

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