202 Pa. 250 | Pa. | 1902
Opinion by
These two appeals will be properly considered together, for, as is admitted by counsel for the borough of Shenandoah, the appellee, they involve the same question. Michael J. Scanlan, one of the appellants, was tax collector for the borough for the year 1895, having been elected for the three years, 1894, 1895 and 1896. He gave a bond each year for the faithful performance of his duties in collecting the taxes, and the question now before us is as to the liability of himself and the sureties on his bond given for the year 1895. What the responsibility of the obligors on this bond is can readily be ascertained from the apparently confusing records brought up on these appeals, and the measure of liability, if any remains, is easy of ascertainment in an issue prayed for, but denied by the court below.
The bond of Scanlan, as tax collector for the year 1895, was in the sum of $100,000, with a warrant of attorney for the confession of judgment. On April 25, 1898, judgment was entered on the bond and a certificate from the town council of the borough of Shenandoah, filed in the prothonotary’s office, that the suiji of $15,418.98 was due on it, according to the report of the borough auditors for the year ending March 30, 1898. On November 17, 1898, execution was issued to collect $13,185.93, the amount then alleged to be due; whereupon the sureties presented their petition to the court of common pleas, asking, for reasons therein set forth, that the judgment be opened and they let into a defense. An answer was filed and depositions were taken on behalf of the petitioners, and, on
After the court had refused an issue on the appeal from the report of 1899, Scanlan presented supplemental petitions, setting forth that it had been learned, since the court had acted on the former petition, that his duplicate for the year 1895, had been audited by the auditors of the borough of Shenandoah in 1897, and that, by their report of the affairs of the borough for the year ending February 28, 1897, the auditors had audited,
When the court below, on May 6, 1901, discharged the rule for an issue on the appeal from the report of the auditors made in 1899, on the ground that the report made in 1898, which had included the liability of Scanlan on his duplicate for the year 1895, was final and conclusive, it knew nothing of the audit of his account for that year by the auditors in 1897. The opening sentence of the opinion filed is : “ Michael J. Scanlan was tax receiver of the borough of Shenandoah during the years 1895 and 1896 and, for some reason, which does not appear from the papers we have before us, his accounts for those years were not audited by the borough auditors until March 3, 1898.” Counsel for Scanlan and his sureties admit that they were utterly ignorant of the 1897 audit until the supplemental petitions were presented. If the court had known of this audit in 1897, before the opinion of May 6, 1901, was filed, the ruling would, of course, have been that it was final and conclusive, just as that of 1898 was held to bo on the appeal from the report of 1899; and yet, after attention was called to this report of 1897, the court inconsistently refused to consider it. In refusing to award an issue on the appeal from the report of 1899, the court based its refusal solely on the ground that, as there
It is contended that, as Scanlan was cognizant of the report of 1898, and had met and acted with the finance committee in preparing the statement upon which that report was founded, it is conclusive as to him and his suieties; but, if the auditors, in the report filed in 1897, had passed upon the liability of the tax collector for the year 1895, and that report was unappealed from, the report made in 1898, so far as it undertook to again consider and pass upon the same question, must, as already stated, be regarded as one which the auditors, in that year, had no power to make: Godshalk v. Northampton County, supra. Not even Scanlan could consent to such a report, changing the liability of the obligors on his official bond, after it had already been finally fixed in a statutory manner. His appeal from the orders of May 6, and June 3, 1901, which may be considered as one, is from an order or decree that would change a liability on an official bond after it had been unalterably fixed, and, though his sureties have not formally joined in his second appeal, it was taken, and its effect is to be so regarded, to correct any error committed in determining the amount that can be collected on the bond for the year 1895.
The proceedings instituted by the appellants in the court below, to May term, 1898, No. 412, are dismissed at their costs, including those on their appeal to this court from the order made June 19, 1899. The order made May 6,1901, is vacated and set aside. The order of June 3, 1901, is reversed. The rule asked for on May 20, 1901, is granted, with leave to the