
    Stanko v. Bianucci, Appellants.
    
      Insolvency — Bond—Insolvent’s petition — Postponement — Affi~ davit of defense — Sufficiency.
    Where a defendant, arrested on a capias, enters into a recognizance to appear on the first day of the next term of the court of common pleas, and present his petition for discharge, under the benefit of the insolvent laws, and upon that day appears, and for sufficient reasons obtains a continuance until the following term, his failure to present his petition upon the day named in the recognizance, does not work a forfeiture of his bond. In such case the debtor did everything that it was necessary for him to do to prevent the forfeiture, and the court had authority to grant the continuance.
    Argued April 22, 1920.
    Appeal, No. 16, April T., 1920, by defendant, from judgment of C. P. Butler County, December T., 1918, No. 67, for want of a sufficient affidavit of defense in tbe case of Frank Stanko v. Frank Bianucci and Charles Bianucci.
    Before Porter, Henderson, Head, Trexler, Keller and Linn, JJ.
    Reversed.
    Assumpsit on recognizance. Before Reiber, P. J.
    Rule for judgment for want of a sufficient affidavit of defense.
    The facts are stated in tbe opinion of tbe Superior Court.
    Tbe court made absolute tbe rule for judgment for want of a sufficient affidavit of defense. Defendants appealed.
    
      Error assigned was tbe order of tbe court.
    
      W. H. Martin, for appellant,
    cited: Marko v. Willenski, 31 Pa. Superior Ct. 177; Horton & Heil v. Miller, 38 Pa. 272; In re: Insolvency of Robert Spare, 7 Kulp 526; Greenwaldt v. Kraus and Betz, 148 Pa. 517; Crissy v. Vogt, 9 Pa. Superior Ct. 421, 422.
    
      F. H. Negley, and with him Porter W. Lowry, for appellee.
    July 14, 1920:
   Opinion by

Trexler, J.,

Plaintiff in this case recovered a judgment in an action of trespass against Frank Bianucci and a capias having been issued the defendant with a surety entered into a bond under the provisions of the insolvent laws and was discharged from custody. The condition of the bond was “That the said Frank Bianucci shall be and appear before the Court of Common Pleas of Butler County on the first Monday of September, 1918, and then and there present his petition to said court for the benefit of the insolvent laws of this Commonwealth and comply with all the requisitions of said iaw and abide all the orders of said court in that behalf then this obligation to be void, otherwise to remain in full force and effect, and if the said Frank Bianucci shall fail in obtaining his discharge as an insolvent debtor he will surrender himself to the jail of the said county.” On the day set in the bond Frank Bianucci and his counsel appeared in court, presented no petition but obtained a continuation of the case until the first Monday of the following December which was the term following the one designated in the petition. Before the date fixed in the order of continuance, the plaintiff brought this suit alleging that the failure to present the petition operated as a forfeiture of the bond. Defendant’s affidavit of defense recited the fact that a continuance had been had. The court held that the failure to present the petition caused a forfeiture of the bond and the fixing of a future date for the presentation of the petition of the insolvent for discharge, and the continuance to said date, was invalid and without authority and entered judgment against the defendant for want of a sufficient affidavit of defense.

The question before us is, “Can the court postpone the time for the presentation of a petition for a discharge in insolvency proceedings?” The question has not been definitely decided but we have a number of intimations from both the appellate courts which would indicate that the defendant pursued the proper course under the circumstances. In Horton & Heil v. Miller, 38 Pa. 270, the defendant failed to present his petition at the term named in the bond, and the eonrt stated, “Had the petitioner applied to court to continue or fix the time within which he might present his petition, even if to some day outside the term, perhaps he might have saved his bond.” “When the order fixes a day for final hearing, the petitioner must ask for his discharge, or if unable, from some mistake or omission, to have this, he must make his peace with the court, and get a continuance, or if not, and he would save his bond, surrender himself to jail. Either a discharge, or continuance, or surrender must appear to save the bond”: McDonough’s Case, 37 Pa. 275; Marks v. Willenski, 31 Pa. Superior Ct. 177. In Bartholomew’s Adm. v. Bartholomew, 50 Pa. 194, where there was a failure to fix a day for a hearing the court speaking of the insolvent said, “He was bound to see that a day was fixed for his hearing, or at least a continuance of his application granted.” The late President Judge Rice of this court, when on the Common Pleas of Luzerne County, In re: Insolvency of Robert Spare, 7 Kulp 526, says, “The fatal objection to the proceedings is that he did not present his petition for discharge at the next term of court. Perhaps as was suggested in Horton & Heil v. Miller, 38 Pa. 270, the court would have been authorized to extend the time for presenting his petition, if he had asked an extension for that purpose, but he did not ask it, and the order of May 25th cannot be construed as having that effect. In the absence of such an order the court has no discretionary power to relieve an insolvent from the forfeiture of his bond.” The cases all hold that the debtor is the only one who sets the provisions of the law in motion, and must keep them moving. Had the defendant done nothing on the day fixed for the presentation of his petition his bond would have been forfeited, but his securing a continuance, was keeping the matter in motion. It is useless to argue that the language of the act of assembly must be literally followed in every case for no one would claim that an act of God would not relieve the defendant. See Scully v. Kirkpatrick, 79 Pa. 324; Bailie v. Wallace, 10 Watts 228. We think the court should have allowed the case to go to trial.

The order of the court below is reversed, the record be remitted to the court below with a procedendo.  