75 Pa. Super. 554 | Pa. Super. Ct. | 1921
Opinion by
We are all of opinion the first position taken by the learned counsel for the appellant is untenable. It is true the bond upon which these appellants were sureties was required to be filed in the office of the clerk of the court of quarter sessions, there to remain “subject to the order of the court for the security of the said townships, boroughs and school districts.” See Act of the 1.7th of February, 1859, P. L. 51, extended to Potter County by the Act of April 2, 1860, P. L. 584. These statutes are still in force. We may concede that a due regard for the principles underlying sound practice would have suggested an application to the court of quarter sessions for leave to withdraw, from its records, the bond in question and file the same in the office of the prothonotary, so that the warrant of attorney attached to it might be duly executed. It is clear the court of quarter sessions could have authorized such withdrawal of its record for that purpose and doubtless would have made such order had one been applied for. It would in no way benefit the appellants to reverse the order or decree of the court below on that ground. That could only result in a new proceeding properly begun after an unnecessary expenditure of time and money that would benefit no one. We therefore hold the error was harmless and these appellants were in no true sense aggrieved by the refusal of the court to strike off the judgment on that ground.
The second question raised by the appellants and the one chiefly relied on by their learned counsel presents more serious considerations. The principal in the bond named was the duly elected tax collector of the Borough
Now the fact is that notwithstanding the provisions of the Act of 1911 and the considerations just referred to, the school directors of the district now in question did deliver to the general tax collector their duplicate and warrant without demanding or requiring from him any bond in addition to the general bond provided for by the Act of 1885. As already stated, the counsel for the school district filed a copy of the bond in the office of the prothonotary of the court of common pleas of the same county and had him execute the warrant of attorney accompanying said bond by entering a judgment for the amount of the default against the appellant sureties. The learned court below refused to strike oft the judgment because of the irregularity already referred to, and discharged a rule to open the judgment upon the ground we have just been considering.
In Com. v. Perrego, 40 Pa. Superior Ct. 320, we had before us practically the same proposition here and now in question. In that case Perrego, the appellant, was the duly elected tax collector of Lake Township in Luzerne County. He had duly qualified by tak
“But when we turn to the Act of March 22,1841, P. L. 99, imposing the collection of the collateral inheritance taxes on the register, we find that the legislature did not rely on the general official bond of the register as a security for the performance of this new duty, but required a special bond for this purpose, and provided a mode to enforce the giving of it. It seems to us very plain, therefore, that the general bond is not intended to secure either payment of these collections or the giving of the special bond to secure them.” Now observe it was
The learned court below appears to have been of the opinion that the question was controlled by Black v. Duquesne Borough, 239 Pa. 96. The pith and marrow of the decision in that case we believe to be fairly exhibited in the following excerpt from the opinion of Mr. Justice Elkin : “If a tax collector has not been elected, or if when elected he refuses to qualify, or to furnish a bond, or if for any proper reason there is a vacancy, then and in those events the board is given the power of appointment. Nothing of this kind appears in the present case. A tax collector was elected, qualified and offered to furnish a proper bond. ' He was not only willing to serve but refused to be ousted. There was no vacancy to be filled by appointment.” It appears to us to be reasonably plain that the case just cited cannot fairly be said to be controlling of the question before us. The same is true of the case of Copelin v. Harrisburg School District, 242 Pa. 221. The proceeding was for a writ of mandamus to compel the school directors to deliver their
We áre of opinion, therefore, that the learned court below, relying chiefly on the two cases just above considered, fell into error in making them the basis of his refusal to open the judgment and permit the defendants to make their defense. The order discharging the rule to that effect must therefore be reversed and set aside and the record remitted to the court below with direction to make such rule absolute and proceed to the trial of the issues raised in the manner prescribed by the law. It is so ordered.