Appeal of Laird, 2 Pa. Super. 300

2 Pa. Super. 300 | Pa. Super. Ct. | 1896

Per Curiam,

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 exceptions was not allowed to bring the facts upon the record, nothing was brought up for review but the record proper, and if palpable and gross abuse of the discretionary power of the court below did not appear on the face of the record, the Supreme Court invariably refused to reverse, and in some cases quashed the writ: Jackson v. Morter, 82 Pa. 291; Shakespeare v. Delany, 86 Pa. 108; Connelly v. The City of Philadelphia, 86 Pa. 110; Laird v. McCarter, 2 W. N. C. 213; Leonard v. Leonard, 20 W. N. C. 346; s. c., 9 Cent. Rep. 373; Rees v. Berryhill, 1 W. 263; Sloan’s Case, 8 W. 194; Griffith v. Edwards, 10 W. N. C. 271; Weaver v. Lyon, 3 Cent. Rep. 263; Haslage’s Appeal, 37 Pa. 440; Bower’s Appeal, 84 Pa. 311. The act of 1889, supra, providing that every appellate proceeding shall be called an appeal did not extend the right of review, or change its extent in cases already provided for or modify in any manner its exercise: Rand v. King, 134 Pa. 641; Com. v. Bird, 144 Pa. 194; Gates v. Penna. R. R., 154 Pa. 566. In a recent case where the court below refused to set aside the sale, the Supreme Court dismissed the appeal, and although intimating that the grounds of the application seemed meritorious yet said: “The subject is one which belongs to the class over which the courts exercise a discretionary power, in view of all the circumstances prescribed to them for consideration. We cannot presume that this power was abused in this instance, and except for an abuse of it we do not ordinarily interfere in matters resting in the discretion of the lower courts: ” Germer v. Ensign, 155 Pa. 464. In another case the court affirmed the order setting aside the sale, saying: “ The price was grossly inadequate, and the court was at liberty to seize upon any other circumstance hi order to give relief. We do not review the action of the lower courts in setting aside sheriff’s sales except in extreme cases, and this is not one of them: ” Ritter v. Getz, 161 Pa. 648. To the same effect are Cake v. Cake, 156 Pa. 47; Phillips v. Wilson, 164 Pa. 350; Hollister v. Vanderlin, 165 Pa. 248; Trust Co. v. Brynes, 166 Pa. 496. In many of the cases above cited the grounds for setting aside the sale were no more meritorious than those assigned by the court below in this case. They fully warrant us in holding (if authority is necessary) that whether we look at the record alone or also at the reasons assigned by the learned judge for his action, there is apparent no such abuse of discretionary power as would justify us in interfering.

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.