Commonwealth v. Piroth , 17 Pa. Super. 586 ( 1901 )

Opinion by

Rice, P. J.,

This was an action of assumpsit on the official bond of Frederick Piroth, Sr., as tax collector of West Liberty borough for the year beginning, the first Monday of April, 1895. The auditor’s report made on June 8, 1897, referred to and made part of the plaintiff’s statement of claim, does not show the amount due for the year 1895, but does show what is claimed to be due in lump for the years 1893, 1894 and 1895. The plaintiff, the school district, alleged in its statement of claim that the balance due for the year 1895 was $145.96 with interest thereon from June 26, 1896. The defendants alleged in their affidavit. of defense, that the whole amount of taxes for the year 1895, less exonerations, etc., was turned over to the treasurer. A similar action was brought for the year 1894, both cases were tried together, and the same questions were raised in both.

1. As there were different sureties for each year, it was incumbent on the plaintiff to show what was the deficit for each year. This the auditor’s report of June 8, 1897, fails to show.

2. As these suits were brought in 1898, the action of the auditors in October, 1900, could not be admitted in evidence for obvious reasons.

3. In their affidavits of defense originally filed, Piroth swore that his account for 1895 was audited in 1896, and his account for 1894 was audited in 1895, and that no appeals were taken from either of these settlements. It is not clear that the defendants intended to abandon this part of their-defense when they filed their supplemental affidavit. Be that as it may, as the case was disposed of on a motion for compulsory nonsuit, the omission to print the original affidavit did the defendants no harm. Aside from what is alleged in that affidavit, the court correctly held that the plaintiff could not recover in either action upon the evidence furnished by the auditor’s report of June, 1897, and, having declared on that report, could not recover upon another report attempting to separate the amounts due for each year, which report was made after suit brought.

The assignments of error are overruled and the judgment is affirmed.