2 Pa. Super. 300 | Pa. Super. Ct. | 1896
Prior to the act of May 9, 1889, P. L. 158, there was no appeal from an order setting aside or refusing to set aside a sheriff’s sale: Hoffa’s Appeal, 82 Pa. 297; Young’s Appeal, 2 P. & W. 380. The appellate remedy if any of the party thinking himself aggrieved was by writ of error or certiorari. But as in applications for summary relief of this kind where the court is authorized to act upon extrinsic evidence a bill of
The record, it is true, does not show that .depositions were taken in support of the rule; but the court may have heard oral testimony, as asserted by the appellee’s counsel. We need not however speculate as to that. Where in the exercise of its discretionary power to grant summary relief in proceedings of this nature the court acts on extrinsic evidence the presumption is that everything was done rightfully and according to law: Bain v. Funk, 61 Pa. 185; Holland v. White, 120 Pa. 228; Nicoll v. McCaffrey, 1 Pa. Superior Ct. 187. It is not to be presumed, that the court acted arbitrarily and without proper-proof of the facts upon which it based its action.
The rule, to show cause why the sale should not be set aside was granted on September 21,1895, upon the application — quoting the language of. the petition — “ Of the Fidelity Title and Trust Company, assignee for the benefit of creditors of the Twin Cities Building and Loan Association” (the plaintiff in the writ on which the sale was made) “ by its attorney and agent in this behalf.” The rule was argued on October 10th. On October 21st on motion of the attorney of record for the plaintiff who was also one of the attorneys for the rule and of the receiver, the petition, proceedings and record were amended to read: “ The petition of the Union Trust Company, receiver for the Twin Cities Building and Loan Association, for rule on William M. Laird to show cause why sheriff’s -sale should not be set aside.” This substitution of the Union Trust Co. for the Fidelity Title and Trust Co. was a matter resting in the sound discretion of the court below. No objection appears to have been made and we are not informed how the respondent was or could have been harmed by the amendment. Whether the former or the latter company was the proper representative of the interests of those entitled to the assets of the Twin Cities Building and Loan Association was for the court below. It is manifest, in any view of the case, that the sale was not set aside upon the application of a mere outsider, having no interest in the matter.
The order is affirmed and the appeal dismissed.