Kauffman's Appeal , 70 Pa. 261 ( 1872 )

The opinion of the court was delivered, January 9th 1872, by

Williams, J.

However improper the act, the delivery of the declarations, confessions of judgment and praecipes for executions to the prothonotary at his residence on Sunday evening, did not affect or impair the validity of the judgments entered, and the executions issued in pursuance thereof the next morning. The prothonotary was not bound to receive the papers at his dwelling-house, and his acceptance of them there cannot be regarded as an official act. He did not receive them in his official capacity, but merely as the agent of the appellee; and their delivery to him on Sunday evening no more rendered the judgments and executions entered and issued thereon nullities, than if they had been handed to some other agent to be delivered the next morning to the prothonotary in his office. If, as was held in Baker v. Lukens, 11 Casey 146, a judgment will not be regarded as invalid because the warrant of attorney on which it was confessed appears to be dated on Sunday, there is still less reason for holding the judgments and executions in controversy to be invalid, for in neither of them do the papers appear to have been drawn or executed on Sunday.

But it was error to appoint an auditor to distribute the fund when it was not in court. And the error was not cured by the Act of the 22d of June 1871, Pamph. L. 1376, for it does not appear that the appellant assented to the appointment of the auditor, as provided by the act, or that in any way he waived his right to object to the appointment. The auditor was appointed at the instance of the appellee, without notice to the appellant. It is true that the latter appeared before the auditor and claimed the fund, but on the coming in of the report he excepted to it on the ground that “ the auditor was appointed Avithout the fund being paid into court.” When this exception was made the court below should have ordered the fund into court before proceeding to distribute it. It had no authority to decree distribution of a fund not within its grasp without the assent of the parties in interest: Williams’s Appeal, 9 Barr 267; Troutman’s Appeal, 11 Harris 491; Masser v. Dewart, 10 Wright 534; and for this error the decree must be reversed. The victory will be a barren one, for, on the undisputed facts of the case, the appellee is clearly entitled to the fund.

The decree is reversed at the costs of the appellee, and the record is remitted to the court below7, to be proceeded in according to law.