Marks v. Willenski

Mokrison, J.,

dissenting:

I find myself unable to agree with the opinion of the majority of this court in this case.

It is an action on an insolvent bond executed by the defendants conditioned “that if the said Charles Willenski shall appear at the next term of the common pleas of said county, on April 17, 1905, and then and there present his petition for the benefit of the insolvent laws of this commonwealth, and comply with all the requisitions of the said law, and abide all the orders of the said court, in that behalf, or in default thereof, if he fail in obtaining his discharge as an insolvent debtor that he shall surrender himself to the jail of the said county,” etc.

On March 27, 1905, on petition of defendant, the court granted a rule upon the plaintiff to show cause why the defendant should not be discharged from arrest, returnable April 3, 1905, and it is ordered that the defendant be now discharged from arrest upon his paying the sheriff’s costs and entering security for his compliance with the decrees of the court and the requirements of the act of assembly in such ease made and provided, in the sum of $1,000. On March 28,1905, the court ordered that the return day of the above rule shall be on April 17, 1905, instead of April 3, and on that day the bond above referred to was given.

It seems to be conceded that on the day following his arrest on a capias ad satisfaciendum, the defendant made a general assignment for the benefit of his creditors, and made said petition to the court for leave to take advantage of the benefit of *182the insolvent laws and for a rule discharging him from arrest, pending a hearing upon his petition.

It appears from the record that the application was made under the provisions of the Act of assembly of June 4, 1901, P. L. 404, and this must necessarily be so because that act expressly repeals so much of the acts of March 24, 1818, of June 14, 1836, and of June 16, 1836, as applies to proceedings of this character. It further appears from the record that the defendant, Willenski, appeared in court in person and by counsel, on April 17, 1905, in accordance with the condition of the bond and the rule for his discharge was argued and held under advisement by the court, without fixing any definite time for its disposal. But on April 19, 1905, the court filed the order quoted in the opinion of the majority of this court. It is to be observed that this order does not provide for any notice to the defendant; it does not say when he- shall surrender himself and by its plain wording it implies that the defendant, Willenski, could relieve his surety on his bond by surrendering within a reasonable time, or so soon as he had notice of the order, by undergoing imprisonment in the jail for the period of thirty days. The affidavit of defense avers that Willenski did surrender himself to the jail of the county on April 27, 1905, immediately upon being informed of the entering of the order of April 19, 1905, and that he was imprisoned for the full period of thirty days.

The order of April 19, 1905, does not require the defendant to surrender himself forthwith, but on its face implies that the court did not intend the surrender to be on that day, because if such was the intention, the order would probably have reckoned the thirty days from its date. A fair construction of the order only required the defendant to surrender on notice or knowledge of it, or at most within a reasonable time. When the order was made the defendant was lawfully at large under bail, and the order was made at a time suiting the convenience of the court, without notice to anybody.

I am not willing to agree that the court could hold the matter under advisement and file an order at some future, uncertain time, and that the defendant must surrender within forty-eight hours of thé filing of such order, without notice or knowledge that it had been filed. To hold that the defendant’s bond was *183forfeited and sustain the judgment in this ease would be much like what was said in Greenwaldt v. Kraus, 148 Pa. 517. In that case Chief Justice Paxson (p. 527) said: “The only default which the insolvent appears to have made was •his nonappearance on the day. fixed for the hearing, and this would not seem to deprive the surety of the benefit of the condition of the bond, under the authority of Mullen v. Wallace, 2 Grant, 389; Saunders v. Quigg, 112 Pa. 546; and Marks v. The Bank, 114 Pa. 490. It may be that a comparison of the earlier with the later cases upon this subject may show a mellowing of the law, and that the latter pay less heed to technicalities than the former. This change runs all' through our law, civil and criminal. The law does not now wholly disregard technicalities, but it shrinks from impaling a man upon sharp points, which have no relation to the justice of the cause. Under the circumstances of this case, to hold this surety liable, would be to impale him upon the sharpest technicality ever recognized by a court of justice.” It is true the above language was used in regard to a case not precisely like the present one, but I think the principle applies. In the present case we have an order made, not at the time of argument, nor at any future, fixed time, and the court below has, in view of the facts and terms of the order, impaled the surety on the bond on too sharp a technicality.

By section 5 of the act of June 4, 1901, the defendant, who was arrested in a civil action, had the right to make an assignment of his property and ask to be discharged, and to be discharged on compliance with the law. I do not know whether or not he did comply with the law. There is no appeal from the order of April 19, 1905, and we must in this collateral attack, presume its legality, and-the rights of the defendant and the surety on his bond depend upon the facts averred in the pleadings, and the affidavit of defense, and the legal construction of the said order. In my opinion, a proper construction of said order is that Willenski had the option of making payment or of going to jail, and that the thirty days’ imprisonment should be computed from the date of his surrender, if he surrendered as soon as he had. knowledge or ought to have had knowledge of it.

As to the surrender within forty-eight hours as provided in *184the act of 1901, I think it should be computed from the time when Willenski had notice of the order or when he ought to have known that it had been made. If the debt, interest and costs had been paid on April 27, 1905, by Willenski, it will hardly be contended that the bond would not have been satisfied and it is not plain to me why the exercise of his alternative privilege of going to jail on that date, and serving the thirty days imprisonment, did not have the same effect.

I would reverse the judgment, and send the case to a jury, and if it shall be found that the facts, as to the knowledge of said order, by Marks and Willenski, are as stated in the affidavit of defense, and the surrender and imprisonment of Willenski is as there stated, the jury should be directed to find a verdict for the defendant.

Beaver, J., joined in the dissent.