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leged to have been delivered at or about O. C. of
Estate of John L. Geiger
"5. The affidavit is too vague and indefinite to permit him to file any reply thereto or prepare a defense thereto at-Confirmation of account. the trial of said cause."
Partition-Appointment of an auditor
Section 21, of the "Practice Act 1915," P. L. 483, authorizes the court, upon motion, to strike from the record a pleading which does not conform to the provisions of this act.
The motion charges that the supplemental affidavit of defense does not conform to the provisions of the act.
The purpose of the statement of claim, the answer, and the reply is to establish an issue to be tried. The issue is to be formed before the trial: Williams v. Williams, 79 Pa. Supr. Ct. 189.
In all cases where, in consequence of proceedings in partition, any share in real es
tate shall be converted into cash, the orphans' court may appoint an auditor to asincumbrances on such real estate.
certain whether there are any liens or other
The administrator or trustee is the proper party to make the application for an auditor which should be done before confirmation of
In re confirmation of account of trustee to sell real estate in partition. Confirmation refused.
E. D. Smith, for accountant.
T. A. McCarthy, George Ellis and W. M. Fausset, for heirs.
The defendant's set-off or counterclaim is to be regarded as his statement Wilhelm, P. J., May 5, 1924.-Audit of claim, and, we think, can be attacked of the first and final account of J. Milin the same way that an original state-ton Boone, trustee to sell the real estate ment can be attacked, for the reply can- of John L. Geiger, late of the borough of not be made with more definiteness than St. Clair, Schuylkill county, Pennsylthe supplemental statement is made, es- vania, deceased. pecially when it raises material matters This account should not be confirmed not contained in the original statement because all of the costs incident to a or affidavit of defense. "At the trial, neither party is permitted to make any proper distribution of the balance redefense which is not set forth in an af- maining in the hands of the accountant fidavit of defense or reply thereto, ex-tion should be made without the appointhave not been presented. No distribucept in case of an administrator or executor, guardian or committee, or in tres-ment of an auditor, or perhaps, if it is pass cases as provided by sections 7 and incumbent upon the court to make distri13 of the act."
So far as the supplemental affidavit of defense divulges, we cannot tell if the set-off pertains to the contract upon which the plaintiff bases his suit.
bution, until after proper certificates of search have been obtained from the proper officers, and the cost of these certificates or fees of an auditor would no doubt be a proper charge against the fund remaining in the hands of the ac
The motion to strike off the supple-countant for distribution. mental affidavit of defense must therefore prevail.
Under the act, in all cases where in consequence of proceedings in partition And now, February 4th, 1924, the sup- the share or any part thereof of an heir plemental affidavit of defense filed Octo- or a party in interest in real estate shall ber 15, 1923, is ordered stricken from be converted into cash, the orphans' the record, with leave to file an addi- court, before making a final decree contional, supplemental or amendatory affidavit, secundum regulam, within fifteen days from this date.
firming the partition or sale as aforesaid, may appoint a suitable person as auditor to ascertain whether there are any liens
tate affecting the interests of the parties.
or other encumbrances on such real es- if within twenty years; and against heirs and devises from the date of the ancestor's death, or for twenty years if the death occurred more than twenty years
It is not compulsory on the court to appoint an auditor to pass upon the prior: Phillips Estate, 47 Pittsburgh trustee's account unless an application therefor be made. It may adjudicate the account itself: Wister's Appeal, 125 Pa. 526. It is no ground for refusing confirmation of the sale that no auditor has
been appointed to ascertain the liens against heirs: Zittle's Estate, 4 Lancaster Law Review 163.
Law Journal 77. But it cannot be assumed that a certificate of search against judgment will warrant a distribution because there may be other creditors limitations, it is not necessary judgment equally entitled. "To toll the statute of should be taken. Suit brought within. two years is equally effective. CertifiThe administrator or trustee is the cates from the prothonotary do not ordiproper party to make the application for narily show the bringing of such suits the appointment of an auditor and for and no proof of the state of the record his own sake should certainly do so; and has been made in this present case. the application should be made before There may or may not be other creditthe confirmation of the sale or partition. ors, but the question cannot be disposed It does not necessarily follow that be-of by mere assumption": Estate of David cause an auditor was not appointed be- Beynon, 48 Pittsburgh Law Journal 381. fore the confirmation of the sale that the court does not now have power to appoint an auditor or make distribution of the fund: Lucas' Appeal, 53 Pa. 404. But the court in that case also said: "We hope that hereafter, in all cases coming within the provisions of the forty-ninth Lien of debts of the decedent are paysection (Act of March 29th, 1832, and able out of the proceeds of a partition practically re-enacted in Section thirty-sale: Commonwealth v. Poole, 6 Watts three of the Partition Act of 1917) the 32. Jurgments against heirs are to be executor or administrator will apply to paid to the judgment creditors: Lucas' the court to appoint an auditor for the Appeal, 53 Pa. 404. If the certificates purposes specified in the section. Every prudent man for his own sake would certainly do so.”
Upon the certificate of the prothonotary being filed showing that no such suits have been entered, distribution will be made direct to the heirs: Estate of Phoebe A. Phillips, 47 Pittsburgh Law Journal 77.
show there were no liens against the interest of a deceased heir at the time of his death, his share should be paid to his Distribution should not be made until personal representatives: Beynon's Esafter it has been ascertained whether tate, 48 Pittsburgh Law Journal 381. Hens exist against the ancestor whose On presenting a certificate that no suit estate is partitioned and the heir. Where has been brought to establish lien, distrian heir died before his ancestor's landsbution may be made direct to the heirs: are partitioned, the auditor should ascer- Stover's Estate (No. 2), 8 York 27. tain not only the liens existing against such heir at the time of his death, but also his general debts, the lien of which has not expired: Kerr's Estate, 4 Phila. 182; Beyron's Estate, 48 Pittsburgh Law Journal 381. This act being for the protection of lien creditors, the trustee cannot defeat the right of such creditors by misapplying the fund: Lucas' Appeal, 53
Judgment searches must be taken out against the ancestor for twenty years prior to the sale, or until he acquired title
From the above it can readily be understood that this account is not ripe for confirmation, and a distribution should not be attempted under the circumstances. It appears to be incumbent upon some person in interest to begin such proceeding as is necessary within the rules above laid down, and the law governing the partition of decedents' estates, including distribution.
And now, May 5, 1924, confirmation of the account is refused without prejudice.
Demurrer to the bill in equity by the City Bank of York, Pennsylvania, Peter G. Cameron, Secretary of Banking, in
Bill to enforce personal liability of stock-possession thereof, v Henry C. Bentz and
holders--Filing and recording of certificate of taking possession of bank—Banking Act of 1923-Secretary of banking,
others, defendants, in the Court of Common Pleas of York County, Pa., sitting in equity, No. 1 August Term, 1923.
The bill was filed against twenty-seven defendants, and averred among other powers, &c.-Appointment of secretary things, that Peter G. Cameron was apof banking questioned collaterally-Tak- pointed commissioner of banking by the ing possession of bank without hearing, &c.—Administrative Code of 1923 is
governor of Pennsylvania, and after the approval of the Act of June 15, 1923, he was appointed secretary of banking, which office he held at the time of the filing of the bill; that, on April 24, 1923, while he was commissioner of banking, plaintiff to his remedy at law does not apply. pursuant to the Act of Assembly, he took Sec. 37 of the Act of June 15, 1923, P. L. possession of the City Bank of York, 809-826 confers upon the courts of common Pa.; that the bank is insolvent, and by pleas equitable jurisdiction to enforce the
When special equitable jurisdiction is con
ferred by statute, the general rule limiting a
payment of personal liability of stock hold- statements of assets and liabilities, &c., ers of an insolvent state bank on bill of showed that there is a deficit of $1,110,complaint by the Secretary of Banking.
Where the records of the prothonotary's 379.98; that he deemed it necessary to office and of the recorder's office of the pro- enforce the individual liability of the per county showed that the Secretary of stock holders, and made demand for the Banking had filed and recorded a copy of his certificate that he has taken possession of payment of such payment of such liability; and the the property of an insolvent bank, as re- amount of stock held by each defendant quired by Sections 22 and 32 of the Act of and his individual liability as holder of said stock; and prayed for a decree for the payment by each of the defendants for the amount of his personal liability.
June 15, 1923, P. L. 809-820-823, a demurrer
to a bill in equity by the Secretary of Banking to enforce the payment of the personal liability of stock holders of the bank, on the
ground that the bill does not aver the filing and recording of such certificate, was dismissed.
The nature of demurrer is indicated by the opinion. Demurrer overruled. Robert S. Spangler, for complainant. Cochran, Williams & Kain and H. O. Ruby, for demurrer.
The Banking Act of 1923, P. L. 809 took up the department of banking with the Secretary of Banking at its head, as provided in the general administrative code, and proceded to establish by adequate legislation the future powers and duties of said officer in the administration of said department, before it repealed the Act of 1919; therefore, the authority of the secretary of banking defendant's contention that the court has under the Acts of 1919 and 1923 was con
tinuous for all necessary proceedings in the administration of the affairs of a bank of which the Commissioner of Banking had
taken possession prior to the approval of the Act of 1923.
The secretary of banking is a de facto officer, the regularity of whose appointment
by the governor can not be inquired into col
Wanner, P. J., March 31, 1924.-The
no equitable jurisdiction in this case, because the plaintiff has an adequate remedy at law for the recovery of the assessments in question, is fully met by the following statutory provision of Section 37, of the Act of June 15, 1923, P. L. 809-826, viz: "If any stockholder shall A detailed statement showing the insol- fail or refuse to pay such assessment vency of the bank and its unsafe and un- within such time, the secretary shall banking business, is a sufficient allegation have a cause of action at law or in equity in a bill by the secretary of banking to en- against such stockholders, either severalforce the payment of personal liability of ly or jointly with other stockholders, for ing possession of the property of such bank the amount of such assessment, together
sound condition for the transaction of a
stock holders of the bank to justify the tak
with interest from the date when the this bank under the provisions of the same was due and payable." Section 29 Act of 1919, on the 24th day of April, of the Act of June 15, 1923, P. L. 809-1923. The Act of June 7th, 1923, P. L. 822, by giving the secretary of banking, 498, known as the "Administrative in winding up the affairs of an insolvent Code," which went into effect at 12 bank, all the rights, powers, and duties, 'o'clock noon, June 15th, 1923, only reof a receiver appointed by a court of pealed such parts of section 5 of the Act equity, also indicates that court as one in of 1919 as were inconsistent with the which the necessary proceedings may be provisions of the code. It continued the had. The authority of the legislature to define the jurisdiction of our courts, and to regulate procedure therein, has always been recognized in the decisions. Therefore when special equitable jurisdiction is conferred by statute, as is done in this case, the general rule limiting a plaintiff to his remedy at law, does not apply: 21 C. J. 69; Brackenburg v. Hodgins, 102 Atl. 106-107; 5 Brews. Eq. Prac. Sec. 5494, page 265.
department of banking in clause (a), section 205 of said Act P. L. 510, and provided that the head of said department should thereafter be known as the secretary of banking. Sections 3 and 7, of Article 1, of the code, P. L. 502-504, transmitted the powers of the officers of any department which might be abolished, to their successors, so that proceedings begun in such abolished department or by officers whose positions were Another reason assigned in support of abolished, are to be carried on by their this demurrer is, that the bill in equity respective successors in such departdoes not contain a specific allegation that ments or positions. The Banking Act of the plaintiff as secretary of banking, has June 15th, 1923, P. L. 809, which becomplied with the statutory provision of came effective on the 15th day of June, Sections 22 and 32 of the Act of June at one minute after 12 o'clock, noon, also 15th, 1923, P. L. 809-820-823, which re- continued the banking department with quires him to file in the prothonotary's the secretary of banking at its head, and office a copy of his certificate, that he has after fixing his powers and duties in detaken possession of the property of the tail, repealed the Act of 1919. Section insolvent bank, and also to record the 35 of said act, P. L. 809-825, also vests same in the office of the recorder of in the secretary of banking all the powdeeds. The records of the prothono- ers and duties of the former commistary's office, however, show the filing of sioner of banking, and authorizes the such a certificate by Peter G. Cameron, secretary of banking to prosecute all Commissioner of Banking, on the 26th pending actions and proceedings of his day of April, 1923, and it further ap- predecessor, in courts of law or of pears that the same was also recorded in equity. The Banking Act of 1923, suthe recorder's office of this county on the pra, therefore took up the department of 26th day of April, 1923. The statutory banking with the secretary of banking as requirement of the Act of 1919, which is its head, as provided in the general Adthe same as that of the Banking Act of ministrative Code, and proceeded to es1923, supra, was therefore properly com- tablish by adequate legislation the future plied with by the commissioner of bank-powers and duties of said officer, in the ing while said Act of 1919 was the au- administration of said department, bethority under which he was officially fore it repealed the Act of 1919. There acting.
The objection that the present secretary of banking is not vested with the same authority as the commissioner of banking had under the Act of 1919, supra, to continue the proceedings begun by him under said act, is not sustained by a careful examination of the legislation on the subject. The commissioner of banking took charge of the effects of
was, therefore, continuous authority under the Acts of 1919, the "Administrative Code," and the "Banking Act of 1923," for all necessary proceedings by the secretary of banking, in the administration of the affairs of this bank.
Defendants also contest the regularity of the appointment of the present secretary of banking by the governor. The authority of the governor to make the
Schiesser v. Hartman
Defendant's appeal-Striking off appeal-Attorney at law as surety-Rule
appointment is conferred upon him by C. P. of clause (a) of section 206, of the code, P. L. 510. The present secretary of banking is a de facto officer, the regularity of whose appointment by the governor cannot be inquired into collaterally in this proceeding. The right to hold the of court. office and to perform its duties could only be tested in a direct proceeding by quo warranto. The allegation in the plaintiff's bill is, that the secretary of banking was duly appointed to said of- to obey and respect rules of court relating to fice by the governor of the common-attorney's conduct, but a client should not be wealth, which is sufficient for the purposes of this case.
A defendant's appeal will not be stricken
off because a member of the bar became surety on the appeal in violation of a rule of court prohibiting such action.
It is an obligation of a member of the bar
prejudiced by the conduct of the attorney.
Motion to strike off appeal from the judgment of justice of peace. Refused. Warren H. Cogswell, for plaintiff.
Evans, High, Dettra & Swartz, for defendant.
above motion is that the surety on the appeal bond is a member of the bar-the reason being assigned, doubtless, because our Rule Thirty-seven (37) says that no attorney shall become surety in appeals from justices of the peace.
It is contended that the "Administrative Code" is unconstitutional because it violates the following provision of article III, section 3, of the Constitution of the Commonwealth, viz: "No bill, except general appropriation bills, shall be passed containing more than one subject which shall be clearly expressed in the title." Since the filing of this objection, however, in the recent unreported case Williams, J., March 28, 1924. The of Comth. ex. rel. v. Snyder, the su-single reason given in support of the preme court, on the 7th day of January, 1924, filed an opinion overruling a similar objection to said code, and holding the general executive department of the state government to be a single subject for legislation which may be structurally reorganized and the administrative work The rule is hoary with age. So long and executive machinery of the govern- has it lived that the memory of the oldment systematized in one act of assem-est living local practioner runneth not to bly. the contrary thereof. Since it has surThe detailed statement showing the in-vived revision after revision of the rules, solvency of the City Bank, and its un- it must have been founded, originally, on safe and unsound condition for the fur- the best of reasons; otherwise, long ago, them transaction of a banking business it would have been abrogated. Most is, in our opinion, a sufficient allegation members of the bar readily understand in the bill, to justify the secretary of why the rule persists, for, among other banking in taking possession of the prop- purposes, it serves to afford all lawyers erty of said City Bank, without first hav-protection from the annoying importuniing a formal hearing on the subject, or ties of clients. securing the official approval of the attorney general, vide, Sec. 21 of Act of 1919, P. L. 209-221; also Sec. 21 of Act of 1923, P. L. 819.
And now, to wit, March 31, 1924: The demurrer is overruled and judgment will be entered for the plaintiff against the respective defendants filing said demurrer, on presentation to the court of a judgment in proper form, for its signature, secundum regulum.
An ancient and wholesome rule, it is no different from any other rule of court in that it ought to be obeyed. For an officer of the court knowingly and deliberately to violate the rule may seem to show on his part not only a lack of cooperation with the other members of the bar, the majority of whom, apparently, at least, favor the retention of the rule, but, also want of appreciation of the attitude of, if not actual disrespect towards