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down and wait until the citizens notify presumed to have knowledge of an open them that their highways are out of repair. defect after a reasonable time has elapsed The right to recover damages for injuries for its ascertainment and removal.” The sustained by reason of dangerous places act of 1851, confers upon the municipal in the streets, including the sidewalks, officers ample powers for the management proceeds upon the ground of a negligent and control of brorough affairs, and in no omission on the part of the corporate of- department are they more completely ficers to perform a duty imposed upon equipped with power, than in their juristhem by law-and that duty is one of diction over the borough highways. Their reasonable diligence in the supervision duty in terms is to remove nuisances,” and repair of structures, over which their and they are armed with the power to jurisdiction extends.

tax ad libitum. Having then the authoriIn Vanderslice v. City of Phila., 13 W. ty, and holding the purse strings, there is N. C. 373, where the damage resulted from no hard-ship in the rule which requires the breaking of a sewer, the question of them to exercise reasonable diligence in notice was considered, and the learned looking after the sidewalks and streetsJustice who delivered the opinion of the and this is the standard of their duty in Court, followed closely the reasoning and this regard. Has it been fulfilled in this the text of the opinion of the Court of Appeals of New York in McCarthy v.

The referee has found actual notice, beCity of Syracuse, (46 N. Y. 194.)

cause the supervisor of streets testified In both cases, the doctrine is affirmed, that he saw this hole in the sidewalk just that “mere absence of notice does not before the accident. How long before, necessarily absolve the city from the would have been a most pertinent inquiry, charge of negligence. Its duty to keep but was not made. It is contended the its sewers in repair *** involves the evidence was insufficient to support such exercise of a reasonable degree of watch

a finding, and if this was the only evifulness in ascertaining their condition dence from which notice could be inferfrom time to time and preventing them red, it would perhaps be our duty to set from becoming delapidated or obstructed. aside this report. When the obstruction or delapidation is

But under the act of April, 1868, (P. L. an ordinary result of the use of a sewer which ought to have been anticipated, the the evidence as well as the law and to en

782) the Court is permitted to look into omission to make an occasional examination and to keep the sewers in apparent ter such judgment as it may deem proper. good repair is a neglect of duty which

Was there then sufficient evidence to renders the city liable.” There is not one

warrant the finding of constructive notice word of this which does not as well apply

to the corporate officers. to a board walk as to a sewer, for a board- Jas. L. K’err, (page 66 notes of eviwalk is at least as perishable. We do not dence,) testified "I have noticed the hole

“ however understand the language cited to frequently in passing up and down before mean anything more than that actual no- this accident.” tice is not required. A distinction is taken Anne Oleuiler, (pge 12,) I walked over in the case, between defects that are la- this (board walk) last summer and steptent and those which are open and readily ped in a broken plank once, (describing observed upon inspection. In the one the location as the same.)

It was before case actual notice is evidently meant, on Mr. Siltzer was hurt, the other notice either actual or construc- Israel Jacobs, (pge 17,) I was acquainttive. Said the learned Court “the city is led with this sidewalk, * * * I got my

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foot in it one evening * * * It was be- ' C. P. of fore this accident happened *** Can't Weaver et al. v. Steacy et al. say whether a long or short time before, Sheriff's SaleDistribution of proceeds but it was last summer."

Three hundred dollars exemptionSurely it is a reasonable inference from this evidence that the defect in the board

Taxes-Act of June 2, 1881. walk was patent before the accident and In the distribution of the proceeds of a sheriff's sale of

real estate, if the defendant has waived the benefit of the could, with the exercise of reasonable vigi- exemption laws in three judgments, he cannot claim it as

against a judgment creditor in whose judgment there is lance on the part of those having charge

a waiver ; Pitman's Appeal, 12 Wr. 315, followed.

A claim for taxes, under the Act of June 2, 1881, (P. L. of it, have been discovered and repaired. 45), must state what taxes are claimed and when levied,

and also in all other respects must conform strictly to the This view is strengthened by the ab- Act of Assembly. As the requirements of the Act were

not observed in this case, the claim was not entitled to sence of any proof of watchfulness at all priority of payment allowed by the Act. by the borough officers. Had they shown

Where a varty is clearly entitled to the balance of the

fund for distribution, the Court will not subject it to the proper diligence coupled with want of balance over to the party legally entitled to it.

costs of an audit, but will order the sheriff to pay such notice, there would be good reasons for ex

Rule to show cause why the balance in cusing them—but we must take the case

hands of the sheriff should not be paid as presented, and upon this point alone, iuto Court.

. the only one urged upon us, it would be idle to recommit the report or send the

Under and by virtue of a writ of venparties to a jury.

ditioni exponas issued to April Term, 1883, We do not lose sight of the argument No. 44, the real estate of Morris Cooper, that the borough could not in the first in

one of the above named defendants, was stance have made this repair, even conced- sold by the sheriff on April 7, 1883, for ing the obligation to do so—because the

the sum of $6,832.38. At the time of the statute (1 Purdon 167 pl. 26) and the ord - sale by the sheriff there were open, unpaid nance require the owner of the adjoining and remaining as liens on Cooper's said lot to construct the sidewalk within ten

real estate, six judgments. days after notice from the borough au

The first four judgments have heen thorities to do so. But it must be obsery- paid in full by the sheriff out of the pured, that the fact that borough officers are chase money realized from said sale, and requested to notify lot owners of their , there remains in his hands an unapproduty in this regard, points to the necessity priated balance of $301.91. The whole of inspection and supervision. If the lot of this balance is claimed by W. D. owner fails to repair, then the borough Weaver et al, on their judgment to

I may do so and file its lien-so that assum- August Term, 1879, No. 266. Part of it ing the statute and the ordinance to refer is claimed by Morris Cooper, the defendto the repair of worn-out sidewalks, as ant, under the exemption laws of the well as to their original construction, the Commonwealth, and a claim is only made borough has still the duty resting upon it for $63 of it for taxes against Cooper to do this work, either mediately or imme- which remain unpaid. The sheriff being diately, and it can scarcely be permitted · in doubt as to which of the claimants to plead its omission to notify the proper- were entitled to the fund, through his ty owner, as a defence to this action. counsel, asked for and obtained a rule to

We, therefore, after a careful considera- show cause why the same should not be tion of the law and facts of this case, dis- paid into Court. miss the exceptions, confirm the report,

June 20, 1883, Livingston, P.J. Should and enter judgment for the plaintiff there

the rule in this case be made absolute, and on.

The defendant has taken out a writ of the fund subjected to the costs of an audit ? error, and the case goes to a higher tribu- Is the defendant entitled to the benefit of unal for final adjudication.

the exemption laws? Is the collector of

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taxes entitled to be paid prior and in amount of each kind of tax so returned, preference to the judgment creditors ? the names of the parties assessed with the

Three of the judgments against defend- same, the year when such taxes were asant contain waivers of the benefit of the sessed, a sufficient description by boundaexemption laws; two of them being prior ries or otherwise of each separate lot or to the judgment of Weaver et al. The tract, and about the quantity of the same, defendant Cooper, having waived his and the township or borough in which it right to the benefit of the exemption laws is located; that the person making the in those judgments in favor of plaintiffs same has a warrant for the collection of therein cannot claim it as against the such taxes, and the date thereof, and that judgments of Weaver et al. This is ren- after a proper effort at the proper time, dered perfectly clear on reference to the he could not find sufficient personal opinion of the Supreme Court in Pitman's property by a legal sale of which such Appeal, 12 Wr. 315, and this disposes of taxes or any portion thereof could have the claim made by Cooper, the defendant. been collected, which returns so made

The claim made for taxes is not in shall be signed and verified by oath or writing. The claimant does not state affirmation of the persons respectively what taxes are claimed, or when levied. making the same, and when recorded as He simply claims $63 for taxes. The act aforesaid shall thereafter be the first of June 2, 1881, P. L. 45, declares, “That lien on the real estate upon which they from and after its passage, all taxes, are assessed respectively for the term of whether county, township, poor, school, two years from the first day of July next or municipal taxes assessed by competent after they are returned and recorded as authority upon real estate in this Com- hereinbefore provided, and such record monwealth, except in cities of the first, shall be notice to all persons, and a cersecond, and fourth classes, shall be a first tified copy thereof signed by a majority lien from the date of levying the same of the commissioners or the commisupon the real estate upon which they are sioner's clerk in whose office such record levied, and in all cases where such taxes is kept, and attested by the official seal of cannot be collected from the owners of office, shall be prima facie evidence of the such real estate, or the tenants thereof, or amount of such taxes in all cases relating persons, companies, or corporations as- to the same, and upon payment of such sessed for such taxes under existing laws taxes the record of the same shall be satshall, on or before the first day of January isfied by a majority of the proper comnext after the assessment thereof, be re- missioners having it so marked, which turned by the persons having such taxes shall be attested by them. for collection to the commissioners of the

“That upon any judicial sale of such county in which they are assessed for col- real estate for purchase money or otherlection according to the existing laws, and wise during the continuance of the lien to be recorded as a lien in a book to be of such taxes as hereinbefore provided, kept in their office for that purpose for such taxes shall be first paid out of the use as a reference for all persons inter-proceeds of such sale upon proper claim ested, to be called the Tax Lien Record, and proof of the same before an auditor in which such return shall be entered in or otherwise, as in other cases after payfull with a proper index thereto, both to ment of costs, etc.” the township or borough where located, The claim for payment of taxes in this and to the name of the parties assessed case has not been properly made under for such taxes respectively. That such this act, and the certificate now in possesreturns shall contain a statement of the sion of the sheriff by the county commis

VOL. IV.

NO 52.

YORK LEGAL RECORD. ber, 1864, to the year 1867, duly elected

and qualified, and that he took upon himTHURSDAY, FEBRUARY 28, 1884.

self the said office and acted as such for

and during his full term. That the duly sioners under their official seal is that elected Auditors of the county in each and there was no lien for taxes filed or of every year of his said term, duly did audit, record in their office against the real settle and adjust the accounts of the board estate sold by the sheriff as the property of Commissioners of which he was a of Morris Cooper, the defendant, at the member, and in due form made their retime of said sale on April 7, 1883. The port thereof to the Court of Common tax claimed cannot therefore be paid out Pleas of the said county, and in each and of the proceeds of such sale now in the

every of the said years from 1864 to the hands of the sheriff.

expiration of his said term of office the Having seen that the claim of the de- said Commissioners did fully, fairly and fendant cannot be sustained, and that the honestly submit to the said County Auditax claim is without foundation, it follows tors all the accounts of the county in the that the balance now in the hands of the business transacted by them and the sevesheriff should be applied towards the pay- ral reports of the said Auditors were filed ment of the judgment of Weaver et al.

among the records of the Court of ComWe therefore discharge the rule, and mon Pleas of said county; and although direct the sheriff to apply the balance in the right of appeal from the reports aforehis hands as above stated in part payment said was given by law within 60 days, of the judgment of Weaver et al., to yet no appeals were ever taken from the August term, 1878, No. 266.

reports of the Auditors so filed as aforeRule discharged and order made.

said ; and your petitioner avers that in none of the said Auditors' reports was he

your petitioner ever charged with being York County v. Reeser.

indebted to the county of York one cent. Re-audit of 1872—-Effect of appeal-

Your petitioner further shows that alStriking off judgment.

though the County Auditors' reports of Under the provisions of the Act of 1872, the County Reauditors reported an indebtedness ou the part of the de- the settlements of his accounts as Comtendant and his colleagues, Commissioners of York county of $3,0:9.20. This report was filed in the Prothonotary's missioner for 1864, remained unappealed office and judgment for that amount entered against defendant and his colleagues. Defendant appealed fronı from for eight years ; those for 1865 for this report, but the appeal was never prosecuted. A scire facias was issued on the judgment, aud after the lapse of seven years; those for 1866 for six years; five years the defendant filed his petition praying the Court to quash the scire facias and strike off the report of yet under the provision of the Acts of the Re-auditors. Held, That the petition must be dismissed.

Assembly of March 6, 1872, and April 3, The defendant having appealed from the report, has 1872, Messrs. Cochran, Maish and Walhimself brought it iuto Court for adjudication. There may be matter for judicial investigation, and this

lace were appointed to re audit said accan only be determined upon the hearing of the appeal, upou an issue properly presented to the Court.

counts, who filed their report as such rePetition to quash scire facias and strike auditors, January 2, 1873, entered 284 off report.

November Term, 1872, in the said Court W. C. Chapman for petition.

in which your petitioner and Henry Mill

er and John E. Anstine, his colleagues, are Levi Maish, contra.

charged with an indebtedness to said To the Honorable Judges of the Court

county of $3019.20. He further shows of Common Pleas of York County.

that fron said report and the entry of the The petition of William Reeser the above defendant respectfully represents

same in said court he took his appeal acThat he was one of the Commissioners cording to law, which was duly entered of said county, from the roth of Novem- | in said Court to No. 67 April Term, 1873;

and that on said report although appealed the Act of the 6th of March, 1872, directs from, the aforesaid scire facias was issued the re-auditors to file their report in the to number 59 January Term, 1878, on the office of the prothonotary, without any

, 20th day of December, 1876, and that the order of the court being required for that said scire facias has not since been pro- purpose, and there was no order of the secuted, and nothing further been done in court in the premises. Such order has the case, and that more than five years been held to be requisite in county audihave since elapsed since the issuing of the tors' reports : Lan. Co. v. Slocum, 4 Leg. said scire facias. He further shows that Op. 473 ; Com. v. Hoffman, 24 P. F. S. the records of said Court are still encum- 105. If, therefore, the filing of the rebered with said report of the re auditors, auditors report has any effect as a judg- . showing an apparent lien on his real es- ment at all, it is only by virtue of its entry tate, to his great damage and detriment under the authority of the Legislature, if and seriously impairing his credit. it had such authority. If the judgment

Wherefore he prays that this petition had so remained, as in the case of judgmay be permitted to be filed as an amendments otherwise entered by the prothonoment to his affidavit, filed in said Court, tary, a motion to strike it off might have January 7th, 1878, and that the facts stated been sustained. But the petitioner apherein may be considered and treated as pealed from the report of the re-auditors, the further ground of his prayer in said and that appeal is entered in the Comaffidavit.

mon Pleas docket to April, 1873, No. 67. And further that the prayer of said peti- The petitioner has therefore brought the tioner contained in said affidavit that the report before the court for adjudication. Court should quash the above mentioned

2nd. There may be matter for judicial writ of scire facias, may be permitted to investigation under the Act of March 6, be enlarged so that he may add the pray- 1872, because it has been held that the er that the Court will strike off the said action of county auditors in reviewing acreport of the re-auditors, entered as afore-counts of county officers is not judicial in said to 284 November Term, 1872, as filed its character : Burns v. Clarion Co., 12 and entered against him under the au

P. F. S. 422.

It was there held that the thority of the said acts of 1871; the said Legislature have the power to open the acts being unconstitutional and void. settlement of county officers accounts and And he will pray, &c.

readjust and resettle them, when the pur

pose is expressed “to resettle and equitaWILLIAM REESER.

bly adjust the same.” The preamble of W. C. Chapman, for petition.

the Act of March 6, 1872, expresses the Levi Maish, contra.

purpose of the act in these words : “That

all persons who have dishonestly or unNovember 5, 1883, GIBSON, A. L. J.- lawfully used or applied to their own use Having expressed the opinion, that on ac

the public funds of said county, should be count of the appeal taken, from the report compelled to reckon for the same and to of the re-auditors and entered in this

repay the amount with interest." That court, the court cannot summarily strike such is not the case here can only be off the report, but that all questions touch- shown under the appeal. An issue may ing its validity must be tried on an issue,

therefore be directed. I was requested to reduce my reasons to writing

ist. There is nothing to bring before the court the cognizance of the report except the appeal. The 4th Section of

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