Графични страници
PDF файл




there will be replacing of tires, and the copy

the defendant's residence. plans in evidence show

raises a presumption that defendant was a stand for

resident within the jurisdiction of the court washing cars. l'npleasant conditions to at the time suit was instituted and the pro

cess served. persons in the neighborhood will be es

Act of April 14, 1851, P. L. 612, considered. tablished, which will interfere with the peaceful enjoyment of complainants' Statutory demurrer. houses and reduce the values of their

Il'. Louis Schlesinger, for plaintiff. properties.

It was stated that Ninth Street would L. E. Torry, for defendant. be the end of the garage that would be in general use, but the plan in evidence Hirt, J., December 20, 1923.—Since shows two large doors on Hutchinson

the order of November 28, 1922, overStreet and only one door on Vinth ruling the statutory demurrer to plainStreet, which is neither opened, graded tiff's statement, a motion for a rearguor paved. The proposed location of the ment was granted. Before reargument, garage is within an exclusively residen- plaintiff amended his statement of claim tial section of the city, built up with sub- by attaching a full and complete transtantial modern houses and defendants, script of the proceedings had in the Disin conmon with their neighbors, are sub-trict Court for Oklahoma County, in the ject to a building restriction which pro

State of Oklahoma, in which court judghibits an establishment for any offensive ment was entered against the defendant busines.

in favor of the plaintiff. The judgment The allegations of the bill of

there entered is the foundation of the

complaint are sustained by the evidence as

action here. To the amended statement to the resn«ential character of the neigh-defendant filed a statutory demurrer, alborhood, that the maintenance and oper-leging that the statement is insufficient ation of a public garage in this location in law, in that it does not aver that devill be a nuisance and in conflict with fendant was a resident of the State of the restriction in defendants' deed.

Oklahoma the time the suit was

summons The rule for an injunction should be brought, nor that the made absolute: Hohl et al. v. Modell, served upon him within that state. 264 P'a. 516.

The transcript of the summons, filed Ind now, to wit, July 7, 1924, it is as part of the Oklahoma record, contains ordered and decreed that the rule a return of the sheriff to the effect that granted to show cause why a prelimin- on April 3, 1916, he executed the sumary injunction should not issue be made mons by delivering a true copy thereof, absolute, and that defendants be re- at the usual place of residence of F. O. strained from erecting and maintaining Reed, with B. M. Dilley, he being a a public service garage on the premises member of defendant's family over sixdescribed in the bill. Security to be en- teen years of age. tered in the sum of $1,000.

The Act of April 14, 1851, P. L. 612,

in section 10, provides: “If the record of C. P. of

a judgment of another state does not Quinn v. Reed

show that personal service of the notice process by

which suit was menced, upon which said judgment was

obtained, was made in such foreign Pleadings--Foreign judgments-Pre- state, it shall be sufficient to maintain a sumption of residence-Service of pro- plea to the jurisdiction of the court in

which said judgment was rendered." Cess-Act of April 14, 1851.

In the case of Reber v. Wright, 68 Pa. In an action upon the judgment of a court 471, followed in Shilling v. Seigle, 207 of a sister state, it is not necessary to aver Pa. 381, objection was made that the in the statement of clain that defendant did in fact reside within the jurisdiction of the record on its face showed that there was court in which the judgment was rendered, no personal service on defendants, but where the transcript of the sheriff's return of the summons shows service by leaving a it was held that, as it appeared that there


[ocr errors]

Erie Co.



had been service by a copy of the writ Story on Conf., ch. 14, par. 539. To left at the place of residence of the de- the same effect is Rogers v. Burns, 27 fendants, the service was sufficient to Pa. 525. But to give the Act of 1851 sustain the jurisdiction of the Ohio for would be in violation of the Consti

the broader construction here contended court, in the absence of any evidence tution of the United States and the Act that defendants were not at the time res- of Congress passed in pursuance thereidents within the jurisdiction of the

of." court. In other words, without more than appeared from the face of the rec

It, therefore, appears that, since the ord, the presumption was that defend-record of the foreign judgment shows ants were residents of the State of Ohio that service was made by leaving a copy at the time the suit was instituted and of the summons at the residnce of the the process served. In support of that defendant, a plea to the jurisdiction canconclusion, Mr. Justice Sharswood, in not be maintained until it be shown that part quoting the ruling of the lower defendant in fact was not resident withcourt, said: “The whole object of the in the jurisdiction of the Oklahoma court

at the time of service. The presump9th and ioth sections of that act of assembly (Act of April 15, 1851, P. L. tion that defendant's residence was in

Oklahoma arises from the return of the 614) was to provide for the case of an attempt to make a resident of this state sheriff, and, therefore, the statement of

claim need not contain an averment to party to a suit in another state by the service of notice or process upon him in

that effect. this state. The 9th section provides that

And now, to wit, December 20, 1923, ‘it shall be competent and lawful for a the statutory demurrer filed April 18, defendant in any action of debt upon a 1923. is overruled, with leave to file his judgment of a court of another state, affidavit of defense within fifteen days. for maintaining a plea in bar to said action, to prove the service of the notice Q. S. of

Lackawanna Co. or process by which the original action

Commonwealth v. Williams was made on him in that state. The both section was intended merely to provide that if the record on its face, where there was personal service, did not show Embosslement-Bail for appearance that it was made in such foreign state,

---Constitutional laze. it should be sufficient to maintain a plea to the jurisdiction. It surely did not In fixing bail for appearance the Constitumean to say that where a service was

tion provides that excessive bail shall not be

required, made by leaving a copy at the residence

In general, the matters to be considered in of the defendant, or where there was a fixing the amount of bail in cases of this voluntary appearance, either in person ence; (2) the sum embezzled; (3) the pen

character are: (1) The gravity of the ofor by attorney, the plea to the jurisdic- alty in case of conviction; (4) the age and tion should be thereby maintained. Per-|(5) the prior standing and reputation of the

condition of health of the defendant; and haps there was no occasion for the act. defendant. It seems to have been passed ex majori

Application for increase of bail. Recautela. Such personal service out of

fused. the jurisdiction of the court in which the judgment was rendered, clearly would H. A. Scragg, Dist. Atty., for Comnot give jurisdiction. All the authori- monwealth. ties concur in this. No sovereignty,'


R. IV. Rymer, for defendant. says Mr. Justice Story, 'can extend its process beyond its own territorial lim- Edwards, P. J., July 29, 1924.—The its to subject other persons or property bail already given by defendant is in the to its judicial decisions. Every exertion sum of fifty thousand dollars. The bail of authority beyond these limits is a mere is for appearance only. A few weeks nullity and incapable of binding such ago the district attorney made an applipersons or property in other tribunals :''cation before one of the judges for an



order increasing the amount of bail. The The valuation placed by sworn appraisers

upon the property selected by the spouse judge held the matter under advisement

be respected, unless there is clearly and stated that the application would be shown fraud or collusion, or such evident submitied to the court en banc.

Cervaluation of the property as may sugThe

gest fraud or collusion. consideration of the matter was held An appraisement of real estate selected by over until after the grand jury had made a surviving spouse in which the real estate

valued at $4,000.00 was permitted to their report. The three judges have stand where an exception offered

to pay now passed upon the application; and $4,500.00 for the same real estate. they are unanimously of the opinion that

Exceptions to the appraisement of real the bail already given is sufficient. In fixinig the amount of bail for ap- of Albert D. Leathery, late of the City

estate elected to be taken by the widow pearance in a criminal case, several mat- of York, deceased, in the Orphans' Court ters are to be considered. First of all it is a constitutional guaranty that exces

of York Co., Pa. Exceptions dismissed. sive bail shall not be required. This Samuel Meisenhelder, Esq., for excepprovision is found in the Constitution of tions. the United States and in that of Pennsylvania. If the charge against the de- Spencer D. Il’areheim, Esq., contra. fendant is that of embezzlement, the court should have regard to the amount

Ross, J. July 7th, 1924.-Albert D. of the defalcation, but this does not al- Leathery died intestate, leaving to surtogether control the action of the court, vive him no lineal heirs, but a spouse, because the bail is for appearance and Lottie Leathery. L'nder her claim of exnot for security; and where it appears emption under the Acts of June 7th, that security, in a greater or lesser 1917, P. L. 429, Sec. 2 (a), P. L. 431-2, amount, has been given to the party or and amendatory Act of June 11, 1917, body defrauded, the amount involved is P. L. 755, appraisers were duly apof less importance. In general, the mat-pointed by this court and sworn. Toters to be considered in fixing the gether with personal property of the deaniount of bail are: (1) The gravity of cedent's estate, the said appraisers rethe offense; (2) the sum embezzled ; turned that they appraised "the fol(3) the penalty in case of conviction : lowing described house anyd lot, situate (4) the age and condition of health of in the nith ward of the City of York, the defendant; and (5) the prior stand-Pa., on the north side of West Philadeling and reputation of the defendant. phia Street, containing in front on said

Now, July 29, 1924, the application to West Philadelphia Street a width of 20 increase the bail of defendant for ap- feet, more or less, and extending northpearance is denied.

wardly of uniform width a distance of

175 feet, more or less, to an alley, and O. C. of

York Co. known as No. 725 West Philadelphia

Street, $1,000.00."
Leathery's Estate

The exceptions to the confirmation of this appraisement are by John M. Leath

a Decedent's estate-1ppraisement un- ery, a brother of the decedent, and are

stated as follows: der Section 2 (a), of Act of June 7, "1. The valuation placed upon said 1917, P. L. 131-432Exception to ap- real estate, situate in the Eleventh Ward praisement.

of the City of York, Pennsylvania, on

the north side of West Philadelphia There is no provision for an appeal from Street, containing in front on said West an appraisement made under Section 432 as Philadelphia Street twenty (20) feet,

L. 431-432, amended by the Act of June 11, 1917, P. L. more or less, and extending in depth of 755; but the courts have sanctioned a review of such appraisements upon exceptions.

an uniform width throughout a distance The act does not restrict the spouse in the of one hundred and seventy-five (175) selection of any class or kind of real estate, feet, more or less, to an alley and known nor does it allow any relative or other heir. or creditor to restrict the choice.

as No. 725 West Philadelphia Street, and

appraised by said appraisers at $4,000.00, 0. C. of

Lackawanna Co. is not the true market value of said real

Cummings' Estate estate, but that the correct valuation of said real estate is $4,500.00 and upwards.

"2. Your exceptant stands ready and Decedent's estate-Additional invenwilling to pay for said property or bid at . a public sale of said property and pur

tory-Duty of executor-Act of June 7, chase the same at the sum of $4,500.00, 1917, P. L. 447 and is willing to deposit with your honorable court a forfeit of $450.00 for the filed by the executrix.

After death of testator an inventory was

Subsequently, perfaithful compliance of his said offer. sonal property consisting of household goods

and cash in bank was discovered which was "3. The valuation placed upon said not included in the inventory, and a petition United States Treasury notes by the ap- A citation was awarded and the executrix

was filed asking for an additional inventory. praisers valued at $1,000.00 is too low, in her answer claimed the property referred as there is due on said Treasury notes to under the provisions of decedent's will,

to some interest, the amount of which your

The duty of every executor and adminisexceptant caannot state.”

tiator, under the Act of June 7, 1917, P. L. It will be noticed that the law under 107; section 12 (a), is to make a true inven

tory of which this exemption was claimed and and file the same in the register's office

within thirty days from the time of adminappraised does not give a right of repeal, istration granted, and where personal propbut the courts have sanctioned a review erts not contained in the inventory subse

quently discovered comes to the possession upon exceptions, and if fraud or evident or knowledge of the executor, he shall make partiality is apparent, have referred the an inventory thereof, and file the same with

in thirty days from the time of the discovappraisement back to the appraisers; but

ery thereof. nowhere in the act can we find that any

Irrespective of the respondent's claim unrestriction is placed upon the spouse to der the provisions of the will, the proper select any class or kind of real estate, tlement of her account.

time and place to assert claims is on the set

An executor or adnor does it allow any relative or other ministrator should not be the arbiter of the

of his responsibility to creditors heir or creditor to restrict her choice.

or distributees. The value of the real estate chosen is expressly within the judgment of the

Citation to executrix to file additional disinterested, sworn appraisers appointed inventory. by the court. The valuation placed by the sworn ap

T. P. Duffy, for petitioner. praisers must be respected, unless there

11. J. Martin, for respondent. is clearly shown fraud or collusion, or such evident undervaluation of the prop- Sando, P. J., June 21, 1924.—The deerty as may suggest fraud or collusion: cedent, Rose Cummings, died on the 14th Vandervort's Appeal, 43 Pa. 462, and day of December, 1920, testate, and letauthorities cited by Judge. Barnett in ters testamentary were granted on DecTroutman's Estate, 30 D. R. 708. ember 31, 1920, to Mary L. Cummings,

Mere inadequacy of price is not suffi- who filed an inventory on December 21, cient to set aside the appraisement: Dot- 1921, containing the following, viz. : son's Estate, 2840. R. 9. We are not convinced by any evidence kind except some old clothing of deced

"We find no personal property of any produced that the appraisers exercised and partial or unfair disposition of the which the record shows no exceptions

ent which we deem of no value,” to duties they were sworn to perform, or

were filed thereto. that any fraud, collusion or undervaluation of the property appraised can be im- The petition in this proceeding to file puted to them.

an additional inventory was filed on May And now, July 7th, 1924, the excep- ist, 1922, upon

which citation tions are dismissed and the appraisement awarded and to which an answer was as presented to us is confirmed.





It appears from the testimony at the While the inventory is prima facie hearing that at the time of the death of binding upon the executor: Billheimer's Mrs. Cummings at her home at the cor- Estate, 2 Lanc. Law Rev. 198, yet, he ner of Madison avenue and Gibson street may overcome it with proof: Semple's in the city of Scranton, there was per- Estate, 189 Pa. 385. sonal property consisting of household

Is it appears from the testimony that goods and furnishings, etc., which is there was some personal property beclaimed by the respondent, Mary L. longing to the decedent, and it is the duty Cummings, amounting to twenty-three of the respondent under the provisions dollars.

of the statute to file an inventory; and In the will of Rose Cummings, dated the proper time and place for making her the oth day of December, 1918, and en- claim under the provisions of the will is tered for probate in the office of the re- on the settlement of her account. gister of wills on December 31, 1920, it Now, March 7, 1923, it is ordered and is provided as follows, viz. :

directed that Mary L. Cummings, execu"Item. I give and bequeath to my trix, file an inventory within twenty days daughter Mary L. Cummings, all my after notice of this order. household goods in the home occupied by me at 747 Madison avenue, Scranton, Pa. Item. I give, devise and bequeath to C. P. of

Lancaster Co. my daughter, Mary L. Cummings, her heirs and assigns forever, the single

Croyle v. Groff & Wolf Co. house and lot situate at the corner of Gibson street and Madison avenue, in the Ninth ward, city of Scranton, Pa., Practice-Defective statement on aptogether with all improvements and per-peal from magistrate Amendment -sonal property on premises.

“All the rest and residue of my estate Rule to arbitrate-Acts of June 16, I give and bequeath to Mary L. Cum-1836, P. L. 719, May 14, 1815, P. L. mings."

The duty of every executor and ad- | 483, and April 10, 1921, P. L. 114. ministrator, as expressly declared by the

A statement filed on appeal from the judgAct of June 7, 1917, P. L. 447, section ment of an alderman, which does not have 12 (a), is to make a true and perfect in- of the Practice Act of 1915, is defective and

on it the endorsement required by Section 10 ventory of the personal estate of the de-the Act of 1915 applies, although after the cedent and file the same in the register's line of the statement the plaintiff took out office within thirty days from the time 1826, which is still pending. The court, howof administration granted. Neither eva-be amended.

ever, in such case will allow the statement to

. sion or noncompliance with this positive enactment is contemplated. And by the

Motion to strike off plaintiff's statesame seection, clause (h) where personalment. Amendment allowed. property not contained in the inventory F. Lyman Il'indolph, for motion. subsequently discovered comes to the possession or knowledge of the executor,

Daniel B. Strickler and John A. Coyle, he shall make an inventory thereof, and contra. file the same within thirty days from the Landis, P. J., June 21, 1924.- This time of the discoveery thereof.

suit comes into this court on appeal from Irrespective of the respondent's claim the judgment of an alderman. In acunder the provisions of the will, the pro- cordance with the provision of the Act per time and place to assert claims is on of April 10, 1921, P. L. 144, which the settlement of her account. An ex- amends the Practice Act of 1915, the proecutor or administrator should not be the cedure is the same as is provided arbiter of the measure of his responsi- that act for cases commenced in the bility to creditors or distributees. court of common pleas.

a rule to

« ПредишнаНапред »