34 Pa. Super. 91 | Pa. | 1907
Opinion by
The learned trial judge has accurately and concisely epitomized the averments of the pleadings and the conflicting evidence in support of them and set forth his findings of fact and conclusions of law with clearness and precision. No useful purpose would be served by a restatement of the transactions out of which the controversy between the parties arose, and we shall not attempt it. Equity rule 67 provides that upon appeal in such a case as this such matters only shall be assignable for error as have been excepted to aud finally passed upon by the court as prescribed in the preceding rules governing the trial of cases in equity. Therefore, our discussion of the assignments of eri’or will be confined to the seven exceptions to the judge’s findings of fact, the exception to the refusal of the plaintiff’s application for an issue, and the exception to the refusal to grant a reargument.
The findings of fact excepted to áre not mere deductions from other facts, but are based almost wholly upon direct testimony whicli is not inherently improbable and was given by witnesses who were not more deeply interested in the result than those who testified, to the contrary. Even though the burden of proof as to some, of the matters in dispute was on the defendants, it cannot be declared from an examination and analysis of the evidence sent up with the record that it does not preponderate in their favor. It is not a case where findings are based
■ The granting of an issue in an equity suit is a matter of discretion with the chancellor. This course is only adopted to inform his conscience, and if he is not satisfied with the finding of the jury he may disregard it: Equity Rule 72; Baker v. Williamson, 2 Pa. 116; Baker v. Williamson, 4 Pa. 456 ; Scheetz’s Appeal, 35 Pa. .88; Nicolls v. McDonald, 101 Pa. 514 ; Null v. Fries, 110 Pa. 521. Being solely for the benefit of the chancellor, if he can to his own satisfaction pass upon the evidence without the assistance of a jury trial, he may do so ; for the right of trial by jury, considered as an absolute right, does not extend to cases of equity jurisdiction: Bispham’s Equity, sec. 9. Here the application was made after the testimony was concluded. The trial judge evidently entertained a strong conviction as to the way the questions of fact ought to be decided and of his ability to decide them correctly without the aid of a jury. Under the circumstances, it cannot be declared that he did not exercise a sound discretion in accepting the responsibility which the law cast upon him instead of dividing it with a jury. The cases cited by appellant’s counsel aris
In the motion for reargument it was claimed that it was the duty of the court to ascertain the amount and character of indebtedness, if any, other than the two judgments, against the plaintiff, and the various items thereof, for which the assignment of legacy was held by Paye as collateral. With regard to the question raised by the exception to the judge’s disposition of this motion, it should be stated (1) that Paye explicitly admitted in his answer that the assignment'of legacy was, although apparently absolute, simply taken and held as collateral for the plaintiff’s indebtedness to him; (2) that one of the findings of fact that has been sustained is that it was so drawn at the plaintiff's request. Moreover, the learned judge says in his opinion : “It was stated by plaintiff’s counsel, on the argument of the case, that if it should be determined that the judgments and deed for the timber were valid the prayer for an account — to ascertain the amount, if any, due the defendant Paye for indebtedness in addition to the judgments — -would not be pressed. This would involve an ascertainment of sucli indebtedness, for which Paye claims the legacy was assigned, in part, as collateral. It seems to us that this is a matter cognizable in the orphans’ court when distribution of the estate of Bridget Canavan is made.” We do not find that this statement of the learned judge is controverted by the appellant’s counsel, and in view thereof, as well as of the adequate jurisdiction of the orphans’ court, we cannot say that there was error in the matter complained of.
Upon the whole case we conclude that the findings of fact were warranted by the evidence and that the conclusions of law logically follow therefrom.
All of the assignments of error are overruled, and the decree is affirmed at the costs of the appellant.