Ekel v. Snevily
Supreme Court of Pennsylvania
ERROR to the Common Pleas of Dauphin county. J. M. Ekel against John Snevily. This was an action of assumpsit, founded upon a note of John Smull to John Snevily or order, and by him transferred to John Ekel, and the payment thereof guaranteed to the plaintiff. John Ekel endorsed the note to the plaintiff. A judgment was entered by default. Upon an affidavit of defence, the court opened the judgment, and let the defendant into a defence upon the merits.
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ERROR to the Common Pleas of Dauphin county. J. M. Ekel against John Snevily. This was an action of assumpsit, founded upon a note of John Smull to John Snevily or order, and by him transferred to John Ekel, and the payment thereof guaranteed to the plaintiff. John Ekel endorsed the note to the plaintiff. A judgment was entered by default. Upon an affidavit of defence, the court opened the judgment, and let the defendant into a defence upon the merits. On the trial of the cause, the plaintiff offered the note in evidence; to which the defendant objected, on the ground that the action was…
1Opinion of the Court
The opinion of the Court was delivered by
Gibson, C. J.
The objection that the action is misconceived, must have prevailed had not the defendant been compelled to accept indulgence on terms which preclude him from insisting on merely technical exceptions; for recourse to a guarantor can be had by a subsequent holder of the guaranty, as it is not negotiable, only by means of an action in the name of the guarantee. But the defendant had lost the independence of his position by suffering judgment to be taken against him by default, and by being unable to have it set aside for irregularity, or to…
2Cases cited2 opinions
- Shock v. M'ChesneySupreme Court of Pennsylvania · 1808
- Brown v. Sutter, Pennsylvania Court of Common Pleas, Philadelphia County1788
3Cited by1 opinion
- Herman v. RinkerSupreme Court of Pennsylvania · 1884