Gambar halaman

is admitted by the appellant that his observance of these regulations would bave insured his safe exit from the train, and it is obvious that the injury he received was the direct consequence of his disregard of them. It was his neglect of a duty he owed to the company, and not its neglect of a duty it owed to him, which caused the injury, and is a sufficient answer to his demand that the company shall compensato him for it. This is the rule distinctly laid down in Sullivan v. Philadelphia etc. R. R. Co., 30 Pa. St. 234; 72 Am. Dec. 689; and enforced in Pennsylvania R. R. Co. v. Zebe, 33 Pa. St. 318; 37 Pa. St. 420.

In this case, there was nothing to justify or excuse the appellant's deliberate disregard of the rules of the company.

It pted by a desire to shorten the walk from the train to his destination. A moment's time and a few rods in distance were all that he could save by it, and neither was of unusual importance to him. It was claimed and proved that the company had permitted persons residing north of its road to cross its right of way and track on foot, at different points in the vicinity of the depot, in going to and returning from their work or business in other parts of the town. But in this there was no waiver of its regulations affecting its passengers, nor permission to them to alight on the north side. There was a little evidence to the effect that occasionally a passenger got off there, but none that the company consented to or knew of it, and the learned judge correctly ruled that the rights and duties of the appellant were not affected by it. In Pennsylvania R. R. Co. v. Zebe, 33 Pa. St. 318, 37 Pa. St. 420, it was held that the admission of such evidence was error. This case is clearly within the principle of the authorities cited, and the judgment is affirmed.

RAILWAY COMPANIES — CARRIERS OF PASSENGERS - RULES AND REGULATIONS. – Railway companies as carriers of passengers may adopt rules and regulations which will be binding upon passengers, provided such rules and regulations are reasonable: Poole v. Northern P. R. R. Co., 16 Or. 261; 8 Am. St. Rep. 289, and note; Reese v. Pennsylvania R. R. Co., 131 Pa. St. 422; 17 Am. St. Rep. 818, and note; McGowen v. Morgan's etc. S. S. Co., 41 La. Ann. 732; 17 Am. St. Rep. 415, and note. And the company is not liable for injuries to passengers who disobey such regulations: Dodge v. Boston etc. S. 8. Co., 148 Mass. 207; 12 Am. St. Rep. 541. As to who must decide upon tho reasonableness of a rule made by a carrier, see Pittsburgh etc. R’y Co. v. Lyon, 123 Pa. St. 140; 10 Am. St. Rep. 517.

RAILWAY COMPANIES — DETECTIVE PLATFORM9. — Although a passenger may have known of the defective condition of a platform, he is not bound to keep such knowledge actually in mind: Pennsylvania Co. v. Marion, 123 Ind. 416; 18 Am. St. Rep. 330. If there are two ways of egress, one of which is faulty, but which has been assented to by the company as a means of exit from its trains, an unwarned passenger using it, and receiving injuries, is en. titled to recover, even though the other way, which might have been used, was safe: Delaware etc. R. R. Co. v. Trautwein, 52 N. J. L. 169; 19 Am. St. Rep. 442



decree obtained by fraud and collusion of the parties to it, for the pur. pose of defrauding a third person, may be attacked by him in a collateral


alleges that a judgment has been obtained against him by fraud may attack it directly, by appeal from or by motion to open it, but cannot attack it collaterally in an action to recover money collected by regular


ATTACKED. - A judgment entered on a warrant of attorney is as im. pervious to collateral attack in an action to recover money collected by regular process issued upon it as is a judgment obtained in open court. R. P. Kennedy and Edward Campbell, for the appellant.

A. D. Boyd, R. E. Umbel, G. D. Howell, and E. H. Reppert, for the appellee.

McCOLLUM, J. On December 22, 1886, a judgment was entered in the court of common pleas of Fayette County, in favor of the appellant and against the appellee, for five hun. dred dollars, with interest thereon from the 16th of March preceding. This judgment was entered upon and by virtue of a warrant of attorney contained in a note purporting to be executed by the appellee. An attachment execution was issued upon it, which was duly served upon the defendant therein, and the National Bank of Fayette County was summoned as garnishee. In due course of law, judgment was obtained against the garnishee for $377, and an execution was issued for its collection. The bank paid the amount thereof to the sheriff, who paid it to the appellant. In April, 1887, this suit was brought by the appellee to recover the amount so paid, and the substance of her claim is, that the note on which the original judgment was entered was a forgery, and that she did not appear in answer to the attachment because the appellant told her that she need not, and that he would attend to it for her. The judgment, and the attachment proceedings founded upon it, remain of record, unimpenched, and the question is, whether, while they so remain, an action for the recovery of the money collected and paid by virtue of them can be maintained.

The general rule is, that money collected or paid upon execution cannot be recovered back unless the judgment on which the writ issued is first vacated or reversed: Federal Ins. Co. v. Robinson, 82 Pa. St. 357; Travelers Ins. Co. v. Heath, 95 Pa. St. 333. The reason of the rule is well stated by Mr. Justice Sharswood in Federal Ins. Co. v. Robinson, 82 Pa. St. 357, as follows: “An execution is the end of the law. To permit money so collected or paid to be reclaimed in a new suit would lead to indefinite and endless litigation. If such suit could be maintained, then another might be brought to recover the money paid on the judgment and execution in it, and so on ad infinitum.

In Tarbox v. Hays, 6 Watts, 398, 31 Am. Dec. 478, the plaintiffs brought an action of replevin to recover certain property which the defendant bad purchased at a constable's sale on an execution issued on a judgment which he held against them. It was alleged by the plaintiffs that the judge ment was procured by fraud and without notice to them, but it was ruled by this court that the defendants therein could not question it collaterally. A judgment or decree procured through the fraud and collusion of the parties to it, for the purpose of defrauding a third person, may be attacked by such person in a collateral proceeding, because he has no standing to appeal from it, or to require that it be vacated or reversed. A party, however, who alleges that a judgment has been obtained against him by fraud may assail it directly by appeal from or motion to open it, but he cannot impeach it in an* action to recover the inoney collected by regular process issued upon it. If it be conceded that the averments of the appellee are true, her appropriate remedy was an application to open the judgment. The record of the attachment proceeding shows that she had notice of the judgment before anything was recovered upon it, and the accuracy of this record is not disputed by her. A judgment entered on a warrant of attorney is as impervious to collateral assault as a judgment obtained in open court.

As to the truth or falsity of the appellee's claim, or of the evidence submitted to support or to controvert it, we express

no opinion. We merely decide that while the judgments in question remain of record unreversed, an action to recover the money collected upon them cannot be maintained.

The judgment is reversed.

JUDGMENTS - COLLATERAL ATTACK. — A judgment of a court of competent jurisdiction cannot be collaterally impeached, unless the record shows affirmatively a want of jurisdiction; and evidence even of fraud not found in the judgment roll will not be received to avoid a judgment, although such fraud was in obtaining jurisdiction: Williams v. Haynes, 77 Tez. 283; 19 Am. St. Rep. 752, and note collecting cases upon the subject of collateral attacks upon judgmento Compare Wilkerson v. Schoonmaker, 77 Tex. 615; 19 Am. St. Rep. 803; Lang Syne Gold-mining Co v. Ross, 20 Ner. 127; 19 Am. St. Rep. 337.

Paxson V. NIELDS.


ANOTHER, WITHOUT New CONSIDERATION, VOID. - A note given by a widow for the payment of a debt due by her husband, who was insolvent at the time of his death, without any new consideration to support it, is void, and the renewal of the note from time to time will not raise such consideration. Lewis Dewart and J. Nevin Hill, for the appellants. W. H. M. Oram, for the appellee.

McCOLLUM, J. We are unable to discover from the evidence any consideration for the note in suit. The maker of it is the widow and executrix of Theodore F. Nields, who, at his death, was indebted to the appellants on two notes and a book. account, in the sum of $307.52. The estate was insolvent, and, after discharging the judgment liens, was able to pay its general creditors but five per cent on their claims. On April 21, 1885, the appellants presented their claim to the auditor appointed to distribute the fund in the hands of the executrix, and seven days thereafter induced her to give her personal note for it, which, when paid, was to be in full of their demand against the estate. The dividend their claim was entitled to was $16.47, and it was awarded to them. They received it, and applied it on her note. This note was renewed from time to time, and the amount thereof was reduced by payments from her own earnings to $267.94 at the date of the last renewal. The fund shown by the account of the executrix to be in her hands for distribution was all there was for the creditors, and there was no expectation by the payees or maker that the estate would pay a farthing beyond the dividend this fund would yield. The appellants' demand, after the application of this dividend to it, was worthless, and the parties knew it. It was because of this knowledge that the payees thought it was so generous and honorable in the maker to assume the debt of her dead husband.

It is clear that the appellants lost and the appellee acquired nothing by this transaction. It was a one-sided affair, and exclusively for the benefit of the former. But as a promise to pay the pre-existing debt of another person to his creditor requires a new consideration to support it, they can take nothing further by it. What they have received by virtue of it, they may retain, but the law will not help them to more. The cases cited to sustain the contention of the appellants differ essentially from this. In Leonard v. Duffin, 94 Pa. St. 218, the note was under seal, and the time for the payment of a debt then due was extended one year. In Bentley v. Lamb, 112 Pa. St. 480, 56 Am. Rep. 330, the due-bill was given in execution of an agreement to pay additional compensation for services rendered, and in view of the facts recited in the agreement, this court declined to in fer that the services had been previously compensated in full. In Reily v. Dean, 36 Leg. Int. 304, the maker of the note volunteered to give it, to avoid protest, and to extend the time of payment of a note against the estate.

As it sufficiently appears in the testimony of the appellants that in this case there was no consideration for the promise sued upon, there was no question for the jury, and the learned judge was right in directing a verdict for the defendant.

The judgment is affirmed.

CONSIDERATION, EFFECT OF WANT OF. — A note not founded upon a consideration is void: Dickinson v. Hall, 14 Pick. 217; 25 Am. Dec. 390, and note 392, 393. A guaranty is also void for want of a valid consideration to support it: Evansville N. Bank v. Kaufman, 93 N. Y. 273; 45 Am. Rep. 204. No promise to pay can be enforced unless founded upon a consideration: Utica etc. R. R. Co. v. Brinckerhoff, 21 Wend. 139; 34 Am. Dec. 220, and note. There must be a consideration to support every promise to pay the debt of another: Stewart v. Jerome, 71 Mich. 201; 15 Am. St. Rep. 252. Gratuitous promises cannot be enforced by suit, however worthy the objects intended to be promoted: Presbyterian Church v. Cooper, 112 N. Y. 517; 8 Am. St. Rep. 767; Mills County N. Bank v. Perry, 72 Iowa, 15; 2 Am. St. Rep. 228, and noto.

« SebelumnyaLanjutkan »