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Bar Meeting “ As a Judge for the short time he was upon the Bench his conduct was that of an upright Judge and his decisions were ever impartial and his opinions always clear and convincing. He was a splendid type of citizen and we his professional brethren deeply deplore his death.
“Resolved, That the Secretary of this meeting send a copy of these proceedings to the daily newspapers of the city, and likewise transmit a copy to the family of the deceased.”
In moving the adoption of the resolutions, Hugh R. Fulton, Esq., said:
Hon. David McMullen, for some time an Associate Judge of this Court, died December 20, 1919, in the 76th year of his age.
He was admitted to practice in this Court in 1871, and has had an extensive practice during the entire period, excepting the time of his service as a Judge of the Court.
He was an industrious and painstaking lawyer; he was well read, accurate and reliable. He made a good brief and had his cases well prepared before coming into Court.
He was as conscientious as a practicing Attorney as he was honest and fair as a Judge on the bench.
It was known that he was able, well qualified and worthy when Governor Pattison appointed him to fill the vacancy caused by the death of Judge Patterson in 1893.
He retired from the bench on the election of his successor, respected and honored by the people of Lancaster County, with a reputation as an honest, able and conscientious Judge, a good name that has brought him many friends from that day to this.
As a citizen he enjoyed the respect and confidence of the community.
He was elected a Director of the Lancaster General Hospital upon its first organization in 1893, and was elected by the Board of Directors the first President of the Corporation, and served in that capacity for twenty-three years.
The Hospital was organized without a cent of endowment and is today one of the best in the State.
He has been honored by his neighbors and friends with many positions of trust.
One of the highest honors was a large clientage. A second was the appointment as Judge of our Courts. The third was the monumental service of twenty-three years as President of the Lancaster General Hospital.
The fourth was twenty years of the Presidency of the Lancaster City School Board. Many years Director of the Peoples Bank and Trust Company, a Trustee of the Yeates School, a Trustee of the First Pennsylvania State Normal School, Millersville, of which institution he was a graduate. He was in his younger years a member of the Common Council of this city, and for a long time Treasurer and Vestryman of St. James' Church.
He was a good man and true to every trust put upon him.
J. Roland Kinzer said:
In the death of Judge McMullen the Lancaster County Bar has lost one of its most honored members, and one who for almost fifty years has enjoyed the confidence and highest esteem of his fellowmembers by his faithful devotion to the interests of his clients and his scrupulous fidelity and integrity alike both to his clients and the Court.
He was a careful, conscientious lawyer, a man of high religious principles, a loving husband and father, and a kind and sympathetic friend.
He was modest and unostentatious in his habits, loyal and genial in his friendships, kind and happy in his domestic relations, and upright and just in his dealings.
He was honored by the people of this community and the political party of his choice; and the duties and responsibilities entrusted to his care were strictly, conscientiously and faithfully carried out and discharged.
I have lost a kind friend and office neighbor, whose many kindnesses extended to me during the last twenty years have brought a friendship I value highly, and an insight into his higher qualities of heart and mind, which ever increased my regard and respect for him.
1. C. Arnold said:
To enumerate the many excellent virtues of Judge McMullen would be but to repeat what has already been said by the Chairman of the meeting and others; but I want to pay tribute to his memory and express my appreciation of his pure and lofty character and useful life by saying that I heartily agree with all that has been said in his praise.
When I came to the bar Mr. McMullen was associated in the same office with Samuel H. Reynolds, who was one of the most eloquent and persuasive pleaders before a jury, that have been members of this Bar in my time—and in the trial of cases Mr. McMullen was frequently associated with him—and it was recognized by lawyers that much of the success of these trials was due to the careful work Mr. McMullen did in preparing for trial.
As I look over this assembly and see how few are here who were members of the Bar when I was admitted to practice, I am forcefully reminded that it will not seem long until the activities of some of us will come to an end; and when that end comes, we may be satisfied if our brethren can truthfully pay as high tribute to our character as citizen, friend and lawyer as we today pay to our deceased brother.
The good that men do should live after them and not be interred with their bones. And one of the useful ends of our gathering together on these sad occasions and recording our appreciation of the high qualities of character of those of our number who have rounded out their life-work, is that their example may stimulate us and the younger Bar Meeting members of the Bar to emulate their example, and maintain the high ideals of our calling and the good name of the Bar.
Mr. McMullen was always a gentleman, kind, even-tempered and courteous, but firm in maintaining the rights of his clients. In dealing with him there was no occasion to resort to the rule of Court requiring agreements between counsel to be reduced to writing—his word was his bond-and this principle is one which the Lancaster Bar has long been proud to boast, one that but few of its members violate.
We shall miss Mr. McMullen's genial smile and salutation, but we shall cherish the memory of his high order of manhood and faithful service.
B. F. Davis said :
Death at all times and under all circumstances is an unwelcome visitor. It has again invaded the ranks of our profession and taken from us one of the most assiduous workers in the legal vineyard.
In the death of David McMullen this Bar has lost one of its. really ablest lawyers. I knew him well for over forty years.
I was associated with him in the trial of cases and also was his opponent on various occasions. I learned by experience to know his real worth as a lawyer. Well versed in the principles of the law, possessed of a clear, strong mind, well trained and equipped, this unpretending man was really a formidable antagonist and powerful associate. His abilities were of a high order, and because of his unobtrusive manner, never properly appreciated by the general public. Few lawyers ever obeyed more implicitly the oath we all take when admitted to membership of the Bar. He was the impersonation of honor, truthfulness and squaredealing. No one can justly point to any act of dishonor on his part.
I also was associated with him as a member of the City School Board for a number of years, when that body was non-partisan. His activities and character in that position were such as to commend him to all, and by reason thereof he was chosen President of the Board, a position he held with credit, not only to himself, but also to the honor of that body, the teachers of our public schools and the community.
As a judge he combined ability as a lawyer with the qualities of a born gentleman. His patience, evenness of temper and impartiality were conceded by all.
But in his private life he shone brightest. A true and constant friend, kind and genial in his disposition, he was a man socially attractive. He was in every sense an educated gentleman. Politically non-aggressive, he was always true to the faith of the founders of our Government.
A model father and husband, a man of exalted character. True to his church, his city, his friends, his family. I feel it my duty to pay my humble tribute to the friend and associate of all my active life.
Court of Common Pleas of Lancaster County
Stevens v. Brown. judgment n. 0. V.-Point reserved-Practice. Judgment cannot be entered non obstante veredicto where the record does not show any points reserved or submitted or exception taken to the charge.
This rule is not changed by the Act of April 22, 1905, P. L. 286, which requires that a point requesting binding instructions must be reserved or declined.
Motion for judgment for defendant non obstante veredicto.
M. H. Brown was conducting a general store business and had three stores in the Borough of Columbia. One of these stores was located at 255 Locust Street. The defendant employed there his son, John M. Brown, and a man by the name of Elmer Henry. On May 18, 1916, a man by the name of Bruce Green, who represented the firm of Donald-Richard Company, came to the Locust Street store, and at that time an order was given to him, with a note attached, for a lot of perfumery and toilet goods, as set forth in the plaintiff's statement. A note for $148.00 was given, and it was made payable in four payments of $37.00 each, in two, four, six and eight months. An order was also signed, “M. H. Brown," and the note was signed, “M. H. Brown, Per J. M. Brown." The defendant did not see either of these papers, but his name was appended thereto by J. M. Brown, his son. The goods mentioned in the order were shipped to M. H. Brown, and, when they arrived at the store, they were not received, Brown disavowing all authority in his son to order the goods. The sole question for the consideration of the jury was, whether or not the son was authorized, under a general authority, to give an order of this character. This question, with all the evidence produced, was submitted to the jury, and they found a verdict in favor of the plaintiff for $148.00. No point was submitted to the Court by the defendant, and no exceptions were taken by either party to the Charge of the Court. Notwithstanding this, the defendant, on September 22, 1919, filed a motion that judgment be entered in favor of the defendant non obstante veredicto, and he is met with the objection that no point was reserved.
In Kiefer v. Eldred Township, 110 Pa. 1, it is said that “to authorize the entering of a judgment non obstante veredicto the record must show distinctly what point is reserved "; and in Miller v. Bedford, 86 Pa. 454, that “where the record does not show what the reserved points are, the entry of judgment non obstante veredicto is without warrant.” In Patton v. Pittsburgh, Cincinnati and St. Louis Railway Co., 96 Pa. 169, the Court held that “every reservation of a question should place distinctly upon the record what the point is which is reserved, and the state of facts out of which it arises."
VOL. XXXVII, No. 10
Stevens v. Brown. It is, however, suggested that this strict rule is changed by the Act of April 22, 1905, P. L. 286. That Act reads as follows: “ That whenever, upon the trial of any issue, a point requesting binding instructions has been reserved or declined, the party presenting the point may, within the time prescribed for moving for a new trial, or within such other or further time as the Court shall allow, move the Court to have all the evidence taken upon the trial duly certified and filed so as to become part of the record, and for judgment non obstante veredicto upon the whole record; whereupon it shall be the duty of the Court, if it does not grant a new trial, to so certify the evidence, and to enter such judgment as should have been entered upon that evidence, at the same time granting to the party against whom the decision is rendered an exception to the action of the Court in that regard.” It is manifest that this Act is of no avail to the defendant in the present case. There is nothing on the record upon which he could move for judgment, and it would be error in the Court to entertain such a motion and act upon it. The motion for judgment for defendant non obstante veredicto is, therefore, denied.
Court of Common Pleas of Lancaster County
W. P. Donahue v. Arthur Mellinger, trading as the Auto Repair
Shop and Garage. Replevin Affidavit of defense — Lien for repairs — Fictitious name
Act of June 28, 1917.
In an action of replevin for an auto truck an affidavit of defense is insufficient which claims a lien for repairs but fails to deny the allegation in the statement that at the time the work was done the defendant was doing business under a fictitious name without having filed the certificate required by the Act of June 28, 1917, P. L. 645.
The law will not lend its support to a claim founded on its own violation.
The plaintiff issued this writ of replevin to obtain an auto truck in the possession of the defendant. He alleges in his statement that the defendant, Arthur Mellinger, was doing business under the name of the “Auto Repair Shop and Garage” without having filed certificates in the office of the Prothonotary or in that of the Secretary of the Commonwealth as required by the Act of June 28, 1917, P. L. 645.