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W. P. Donahue v. Arthur Mellinger, trading as the Auto Repair Shop and Garage.
The defendant in his affidavit of defense claims a lien on the auto truck for repairs, to the amount of $159.76, which repairs were made in January and February, 1918. It is not denied that the defendant, Arthur Mellinger, was doing business under the name of Auto Repair Shop and Garage, nor is it denied that at the time the repairs were made he had not filed the certificates required by the Act of 1917.
We are asked to enter judgment for the plaintiff for want of a sufficient affidavit of defense, because the certificates were never filed, it being argued that the defendant was thus carrying on a business in violation of the Act of 1917, and therefore could not have a valid lien for the repairs made and done under that name.
The Act of 1917 makes it unlawful for any individual to carry on business under an assumed or fictitious name, style or designation, without having filed certificates in the office of the Prothonotary and Secretary of the Commonwealth, and prescribes penalties for a violation of the Act. In Sykes Department Store v. P. R. R., 36 L. L. R. 244, it is decided that the plaintiff, who was doing business under an assumed or fictitious name, without having filed the certificates required by the Act of June 28, 1917, P. L. 645, is unlawfully carrying on business, and cannot recover for a claim arising out of the conduct of that business. Judgment was entered in that case for the defendant.
That the conclusion arrived at in that case is correct is shown in the case of Holt v. Green, 73 Pa. 198. In it the plaintiff's claim was for commissions as a broker, or sales agent, for the sale of certain machinery put in his hands for sale by the defendant. The plaintiff had not obtained a license as required by the Act of Congress of June 30, 1864, which provided that no person shall engage in business as a broker to negotiate sales and purchases of merchandise, etc., without first having obtained a license. A violation of the Act is punishable by fine and imprisonment. It is said in the opinion, "An action founded upon a violation of the laws of the United States or of this state, cannot be maintained in the counts of this state: Maybin v. Coulon, 4 Dall. 298; s. C. 4 Yeates 24. It is not necessary that the statute should expressly declare the contract to be void. An action founded upon a transaction prohibited by a statute cannot be maintained, although a penalty be imposed for violating the law : Seidenbender et al. v. Charles's Admrs., 4 S. & R. 159. Hence where a contract is made about a contract or thing which is prohibited and made unlawful by statute, it is void, though the statute itself does not declare it shall be so, but only inflicts a penalty on the offender: Columbia Bridge Co. v. Halderman, 7 W. & S. 233. Nor is there any distinction in this state, whether the contract is malum prohibitum or malum in se: Id. 235. The test whether a demand connected with an illegal transaction is capable of being enforced by law, is whether the plaintiff required the aid of the illegal transaction to establish his case: Swan v. Scot, 11 S. & R. 164; Thomas v. Brady, 10 Barr 170; Scott v. Duffy, 2 Harris 20. If a plaintiff cannot open his case without showing that he has broken the law, a court will not assist him: Thomas v. Brady, supra. It has been well said that the objection may often sound very ill in the mouth of a W. P. Donahue v. Arthur Mellinger, trading as the Auto Repair Shop and Garage. defendant, but it is not for his sake the objection is allowed; it is founded on general principles of policy which he shall have the advantage of, contrary to the real justice between the parties. That principle of public policy is that no court will lend its aid to a party who grounds his action upon an immoral or upon an illegal act: Mitchell v. Smith, 1 Binn. 118; Seidenbender v. Charles's Admrs., supra. The principle to be extracted from all the cases is, that the law will not lend its support to a claim founded on its own violation: Coppell v. Hall, 7 Wallace 558.”
In the present case, to maintain his lien, the defendant must show that he was engaged in business in violation of the Act of Assembly of June 28, 1917, for which he is liable to fine and imprisonment. The intent with which he did it is not material and cannot affect the case. His right to recover must depend on his legal right to make the repairs for which he claims a lien. On his own showing he had no right, as he was doing it under a fictitious name without having filed the certificates required, and was, therefore, acting in violation of the Act of Assembly.
As defendant's only right to retain possession of the automobile truck depends on the validity of his lien for repairs, and as he has no valid lien for repairs because they were done in violation of the law, the affidavit of defense is not sufficient to prevent judgment, and we enter judgment for the plaintiff for want of a sufficient affidavit of defense.
Judge Landis Takes Oath of Office. On Saturday morning, December 27th, 1919, President Judge Charles I. Landis formally took the oath of office for his third term before a large attendance of the local bar, who tendered their felicitations. The oath was administered by Judge Hassler after the commission had been read by Clerk H. M. Hoffman, of the Prothonotary's office.
Following the administration of the oath of office Judge Landis took occasion to say to the assembled members of the Bar: " GENTLEMEN OF THE BAR:
“I take this occasion to publicly state that I am not unappreciative of the high honor thrice conferred upon me by the people of this county. Then, too, as no official has ever before been nominated and elected here for two successive terms without a contest, I am also not unmindful of this extreme mark of their confidence. This being my last term of service, I will endeavor, during its tenure, if life and strength shall so long last, to continue worthy of their regard.
This district is notable in its conservatism with relation to its judges. Since the adoption of the constitution of 1790, a period of about 130 years, there have been but nine President Judges of this Court. These have been Judges William A. Atlee, John Joseph Henry, Judge Landis Takes Oath of Office. Walter Franklin, Orestes Collins, Benjamin Champneys, Ellis Lewis, Henry G. Long, John B. Livingston, and myself. Their familiar faces adorn the walls of this court room. Prior to the amendment to the constitution, adopted in 1850, the judges were appointed by the Governor; but since that time they have been elected by the people. Under the elective judiciary, there have been but three President Judges, namely, Judge Long, Judge Livingston and myself. Many eminent persons, including Chief Justice Gibson, had grave doubts as to the expediency of this method of selecting judges. Time has, however, proved that such fears were not well based. This result, perhaps, may be attributed to the fact that, in a majority of cases, the fitness of candidates for judicial honors has, to a great extent, been determined by the lawyers, who as a class are undoubtedly best fitted to measure the qualifications of aspirants. It has been said that the bar, in making selections, “ carry the proxies of the people.” A large preponderance of opinion expressed by it has rarely been disregarded by the electorate.
"Since 1854, associate or additional law judges have been elected. There have been five occupants of these places, exclusive of myself, namely: Judges Alexander L. Hayes, David W. Patterson, Henry Clay Brubaker, David McMullen, and Aaron B. Hassler. Thus it results that only fourteen law judges have sat in the Common Pleas Courts since 1791.
* It is not improper, I hope, to advert to the harmony and cooperation which for a long time have been maintained between the bar and this court. If business is more rapidly dispatched and the trial and other lists are in a satisfactory shape, it may be ascribed largely to the loyal and intelligent assistance of the bar. I hope that the same spirit will always control us, and that, as in the past, we may together give our best efforts to the proper and impartial advancement of the law.”
State Bar Meeting. At the mid-winter meeting of the Executive Committee of the State Bar Association held at Easton, December 29th, 1919, it was decided to hold the next annual meeting of the Association at Bedford Springs, no other place being available.
C. P. AND Q. S. OPINIONS.
E. H. Baumgartner, trading as the Contractor v. Henry Druschel, trading as the 0. K. Clutch and Machinery Co. Rule for judgment for defendant n. 0. v. made absolute.
Fred. L. Stevens v. M. H. Brown. Motion for judgment for defendant n. 0. v. denied.
C. P. and Q. S. Opinions. Jacob Frymyer v. Levi Wenger. Rule for a new trial discharged and motion for judgment for defendant n. 0. v. denied.
Samuel F. Frey v. Conestoga Traction Company. Rule for judgment for defendant n. 0. v. discharged.
John W. Geib v. George W. Geib. Rule for judgment for want of a sufficient affidavit of defense discharged.
Byron Franks v. Lancaster Iron Works, Inc. Ten days' time allowed plaintiff to cure defects in statement.
Borough of Marietta v. The Columbia Telephone Co. Annual license fees fixed at twenty cents per pole.
Daniel H. Shenk and Elizabeth Hackman v. Executors of Samuel M. Shenk. Bill, answer and proofs. Bill dismissed at cost of plaintiffs.
Jacob G. Doerr v. Horace L. Skiles, executor, etc. Bill, answer and proofs. Bill dismissed at costs of plaintiff.
Commonwealth v. J. Cletus Stambaugh. Rule for a new trial discharged.
Commonwealth v. H. C. Zimmerly. Rule for a new trial discharged.
Commonwealth v. Isaac S. Burkhart. Motion to quash indictment overruled.
By JUDGE HASSLER:
Donahue v. Mellinger, trading as the Auto Repair Shop and Gar. age. Rule for judgment for want of a sufficient affidavit of defense discharged.
Elias Long v. E. M. Book. Rule for a new trial discharged.
H. S. Roth v. Samuel M. Rensel. Rule for judgment for defendant made absolute and judgment entered for defendant.
David W. Grube v. J. B. Colt Co. Rule to strike off sheriff's return made absolute.
Clifton Forge Milling and Feed Co., Incorporated, v. B. Frank Eby, trading as Jonas F. Eby & Son. Rule for judgment for want of a sufficient affidavit of defense. Judgment entered for $403.24 with leave to plaintiff to proceed for balance of his claim.
Jacob Hupper v. Anna M. Smith and Mary E. Smith. Case stated. Judgment for defendant.
George H. Warfel v. Jacob M. Burkholder. Rule for judgment for want of a sufficient affidavit of defense discharged.
William Kline v. David Mowery. Certiorari. Exception sustained and proceedings set aside.
Commonwealth of Pennsylvania v. George Ely. Demurrer overruled and motion to quash refused.
Commonwealth of Pennsylvania v. Homer Newhouser and Isaac Richmond. Appeal from taxation of costs sustained.
Commonwealth of Pennsylvania v. Catherine Steiner. Rule to strike off costs imposed on James M. Hepbron, the prosecutor, made absolute.
Court of Common Pleas of Lancaster County
Grube v. J. B. Colt Co.
Contract of sale — Orders fulfilled in another state - Where cause of
action arose- -Service of summons- -Sheriff's return-Acts of July 9, 1901, and April 3, 1903.
The Acts of July 9, 1901, P. L. 616, and April 3, 1903, P. L. 139, confer no new jurisdiction on the courts, being only a regulation of service, and apply to foreign as well as domestic corporations.
A writ issued in one county and served on a foreign corporation in another county is improperly issued and not legally served and the court is without jurisdiction, where the defendant had no office or property in either county and transacted its business by shipping merchandise f. o. b. in Newark, New Jersey, upon receipt and acceptance at its New York office of orders solicited by their representative in Pennsylvania upon whom the writ was served at his home town in that state.
The question of the legality of the service of a writ by a sheriff is properly raised on a rule to set aside the sheriff's return.
Rule to strike off sheriff's sale.
June Term, 1919, No. 67.
John A. Coyle, for rule.
Willis G. Kendig, contra.
December 27, 1919. Opinion by HASSLER, J.
This is a rule to set aside the service of a summons and to quash it. The writ was issued in this county and served by the sheriff of Wyoming County, who was deputized for that purpose, on C. R. Vaughan, who is described in the sheriff's return as “their agent at Tunkhannock, Pa., for the time being in charge of the business of defendant at that place.” The defendant company is a foreign corporation chartered under the laws of New Jersey, and has entered its appearance de bene esse for the purpose of making this application. In its petition the defendant alleges that it is a corporation chartered under the laws of New Jersey; that it transacts no business in either the County of Lancaster or Wyoming; that it has no property in either county; that it has no agent, office, depot or place of business in the County of Lancaster or Wyoming; and that C. R. Vaughan, upon whom the writ was served, was not at any time its agent or person for the time being in charge of any office, depot or place of business belonging to it. The plaintiff in his answer to this petition states that the defendant sells and erects gas generators in Lancaster County and elsewhere in the State of Pennsylvania; that C. R. Vaughan is in charge of the defendants' business in the eastern part of the State of Pennsylvania, having his office in Wyoming County, Pennsylvania, and that defend
VOL. XXXVII, No. 11