1 Pa. Super. 107 | Pa. Super. Ct. | 1896
Opinion by
A fund of $1,204.83, arising from the sale of the real estate of Joseph Yeager, was brought into the court below for distribution. As to this fund there were practically four claimants, the aggregate of whose judgments was more than sufficient to exhaust it. These claimants being unable to agree among them - selves, an auditor was appointed to make distribution of the fund. After a careful examination of the judgments of the several claimants and considerable testimony as to the judgment of Emma Yeager, he made distribution—after deducting the costs of the audit, amounting to $90.39—to the Fidelity Building & Loan Association of Mahanoy City, plaintiff in judgment entered to No. 64 of November term, 1891, and also plaintiff in judgment entered to No. 152 of March term, 1892, $611.09; to Charles Becker, now to the use of D. Stull & Co., plaintiff in judgment No. 243 of November term, 1893, $110.84; to Emma Yeager, plaintiff in judgment No. 110, January term, 1894, $235.12; to A. & D. M. Hoppes, agents, plaintiffs in judgment No. 212 of March term, 1894, $53.17; and the balance to the Nuding Brewing Company, plaintiff in judgment No. 200 of November term, 1893, $104.22. Exceptions were filed to the auditor’s report which, upon due consideration, were overruled by him. The court below, after a careful review of the case, reduced the amount awarded to the judgment of the Fidelity Building & Loan Association to $528.08, adding the deduction of $83.01 to the amount awarded to the Nuding Brewing Company, making its distributive share $187.20 instead of $104.22 as fixed by the auditor. In all other respects the distribution, as made by the auditor, was confirmed by the court. The appellant in his presentation of the case omits that part of the report of the auditor which relates to the claim of the Fidelity Building & Loan Association, on the ground that it is very lengthy and has no bearing on the present controversy. He admits that the judgments of Charles Becker, use of, and A. & D. M. Hoppes, agents, were entitled to the amounts awarded to them by the auditor respectively.
As to the judgment of Emma Yeager, considerable testimony was taken by the auditor. We have very carefully reviewed it. The validity of the judgment rests upon the testimony of Joseph Yeager, the defendant, and his wife Emma Yeager. From their testimony, it clearly appears that the wife had a small estate in her possession at the time of her marriage or which came to her shortly after her marriage to Joseph Yeager. Both testify as to the amount which the wife transferred to her husband. The circumstances of the transfer and what was done by them at the time, and subsequently, clearly negative the intention to make it a gift. There is evidence of a note having been given shortly after the transfer, of the loss of this note and its subsequent replacement by the obligation upon which the judgment, the validity of which is contested, was entered. There are some minor discrepancies or contradictions between the testimony of Joseph Yeager and Emma Yeager, but they are not of such a character as to indicate fraud or collusion between the husband and the wife. The auditor carefully considered the facts as is shown by his report, as did also the court below. We think their findings were entirely justified and that the amount awarded to this judgment was properly so awarded. The appellant lays considerable stress upon the fact that the testimony of the husband and wife was not supported by other evidence which was easily accessible. It is to be remarked, however, that the testimony of Emma Yeager especially laid her case open to attack, in case her claim was not honest. It was just as easy for the appellant to contradict her by the evidence to be had in the banks to which she referred, and from the pension office, as it was for her to secure this evidence to corroborate her own. Having failed in this, it is scarcely the subject of proper complaint.
The general conclusions herein stated, namely, first, that an appellate court will not disturb the findings of fact made by an auditor and confirmed by the court below, except in cases of
As to the question of costs, so far as the parties now appearing in this court are concerned, they should undoubtedly be paid by the appellant, for the reason that in the contest as to the judgment of Emma Yeager, in which he was worsted, the auditor properly found that the judgment of Mrs. Yeager was a valid one and, therefore, as between her and the present appellant contesting her claim, the latter should pay the costs. Whether or not there was sufficient in the contest as to the amount of the judgment of the Fidelity Building & Loan Association to have made it properly chargeable with any portion of the costs, we are not able now to determine, for the reason that the appellant has omitted that portion of the auditor’s report which relates to this judgment. From what appears in this case, as presented by the appellant in his paper-book, it is very clear that the court below very properly confirmed the report of the auditor both as to the validity of the judgment of Emma Yeager and as to the question of costs, so far as any liability on the part of Emma Yeager to contribute thereto is concerned.
The decree of the court below is, therefore, affirmed.
