Fraternal Guardians' Assigned Estate

159 Pa. 603 | Pa. | 1894

Opinion by

Mr. Justice Mitchell,

The Order of Fraternal Guardians was incorporated in 1888, by a decree of the Court of Common Pleas No. 3 of Philadelphia, as a beneficial and protective association under the act of April 29,1874, and apparently did a large business until 1892, when it got into difficulties, and in September of that year made an assignment for the benefit of its creditors. The assignee proceeded diligently to liquidate the assets, and on November 19th of the same year filed his account, showing the fund for distribution which is now before the court.

Prior to the assignment however, in May, 1892, the commonwealth, through the attorney general, instituted proceedings by quo warranto in the Common Pleas of Dauphin county, which resulted, on January 25, 1893, in a judgment of ouster, and on the same daj” the appellant was appointed by the same court as receiver. The sole question now before us is whether the fund in court should be awarded to the receiver for him to distribute to the creditors and members of the association. The auditor refused to so award it, and in this he was clearly right. The case is not distinguishable in principle from Com. v. Order of Vesta, 156 Pa. 531. The Common Pleas of Dauphin county as shown in that case bad no jurisdiction to appoint a receiver in the quo warranto proceedings on the motion of the commonwealth, and the appellant therefore was without authority, as such receiver, to take the fund.

The present appeal was taken before the announcement of our decision in Com. v. Vesta, and as the appellant was responsible to the court which appointed him, he was justified in having the law definitely settled before giving up the apparent duties of his trust. He should not therefore be burdened with the costs of this appeal.

Appeal dismissed. Costs to be paid out of the funds of the assigned estate.