Haller's Estate , 56 Pa. Super. 48 ( 1914 )

Opinion by

Rice, P. J.,

The only decree assigned for error is that which is referred to and partly quoted in the ninth specification. The entire decree reads as follows: “Now, October 31, 1912, E. H. Flick, Esq., assignee, is directed to pay F. D. Saupp, Jr., executor of F. D. Saupp, Sr., the sum of $672.44 with interest at the rate of four per cent, per annum from the 10th day of January, 1898. This decree will be modified by permitting a credit of $150, with interest, if sufficient evidence is. offered, within 20 days, to show that such payment was made by the assignee to the attorneys of F. D. Saupp, Sr., at his request.” The $672.54 mentioned in this decree and in the petition upon which it was based is the amount— less attorney’s commissions, costs, and a partial payment of $1,605, made under order of March 7,1898 — awarded to F. D. Saupp, Sr., in the distribution of the funds in the hands of E. H. Flick, assignee for benefit of creditors of Fred Haller. A .considerable part of the larger sum was interest on the judgment of Saupp against Haller, with which the assignee'was surcharged by the auditor. In view of the confirmation absolute of the auditor’s report on January 10,1898, and of the order of March 11, 1910, denying a rehearing, the propriety óf the award, including the surcharge of interest, cannot be questioned in this proceeding. The reasons for so holding are substantially the same as those given in the disposition of the former appeal by the assignee from the order denying his petition for -rehearing, and need not be restated. See Haller’s Case, 44 Pa. Superior Ct. 481.

Another ground alleged in the assignee’s answer to the petition upon which the decree in question was based, is that F. D. Saupp at no time asked said surcharge to be made, and expressly stated to his counsel that he did not ask anything from said surcharge more than the payment of counsel fees; that the said counsel fees have been-paid by the assignee; and that the claim has been since receipted by the counsel of F. D. Saupp in accordance with the understanding and agreement with him. Stating this ground of defense as strongly as the answer warrants, it amounts to this, that F. D. .Saupp agreed to release the assignee from this surcharge upon his paying the counsel fees, and that he has paid them. Such agreement was denied in the replication, and, therefore, it was incumbent on him to prove it. But, of course, the ex parte statements of the counsel of F. D. Saupp in his lifetime, which were attached to the assignee’s answer, were not competent evidence of the matter thus put in issue, namely, the agreement to release the assignee, or of an agreement between F. D. Saupp and his counsel that whatever was received on the surcharge should be appropriated to their fees. No other evidence was submitted to the court by the as-' signee on the hearing of this rule. It follows, in the absence of an assignment of the surcharge to the counsel, or of evidence from which an equitable assignment thereof to them could be implied, that the court was right in holding that after the death of F. D. Saupp they had no authority to discharge the assignee from any part of the award against him, and, therefore, their receipt which was filed on June 12, 1912, was wholly ineffective for that purpose. Under the pleadings and evidence, the decree assigned for error was clearly right.

After that decree was made, the assignee presented another petition, reciting the proceedings from the beginning, but making no mention of the decree of October 31, 1912, and concluding with a prayer “to grant a rehearing or bill of review in this case, that the surcharge thus based on manifest error may be corrected,” etc. Judging from the prayer, as well as the averments of the petition, the purpose was to bring into review the action of the auditor in making the surcharge and the decree of the court confirming his report. The court granted a rule to show cause upon this petition, which, after hearing upon petition, answer, and evidence, was discharged. This order or decree is not assigned for error, and, therefore, we will not discuss the pleadings and evidence upon which it is based, further than to say that the conclusion reached by the learned judge seems to us to be well sustained by the opinion filed by him.

A motion was made by appellee’s counsel to quash the appeal because the auditor’s report is not printed in the appellant’s paper-book. This motion would be well taken if the appeal were from the order denying the motion for rehearing or bill of review, for it is not apparent how it could be determined that the surcharge was based on “manifest error” without having the auditor’s report before us. But it is not absolutely essential in the determination of the questions raised by the appeal from the decree that is assigned for error. Therefore, we do not quash the appeal.

The decree of October 31, 1912, is affirmed at the costs of the appellant.