Gibbons's Appeal

| Pa. | Nov 8, 1883

Mr. Justice Trunkey

delivered the opinion of the court, January 7th 1884.

The report of the Master, Thomas S. Bigelow, was confirmed on the 14th of December 1872, and an order made for the sale of certain coal - and surface land. All parties appear to have acquiesced in the non-execution of that order for a period of more than five years, during which time notliinghad been done in the cause. On June 22d 1878 Robert Arthurs presented a: petition setting forth that he had recently purchased the interest of Clarence M. Johns ; that he had not seen the Master but had seen his clerk who said the Master did not care to be bothered further with said order for sale, and praying the court to vacate the appointment of Bigelow and appoint some person as Master to make sale of the property. Thereupon, the same day, the prayer ivas granted. Upon such showing by a stranger to the record, after so long lapse of time since anything had been done, without the knowledge of the Master’ or of any person interested save the petitioner, the immediate granting of the prayer was extraordinary. If such order can be demanded and obtained forthwith, under such circumstances, a door is open for taking advantage of parties who have been lulled to unwariness.

Arthur, as purchaser of the interest of one of the plaintiffs, had the right to come into his place upon the record, and although he was not formally made a party, the chief question raised by the assignments of error will be considered, namely, whether the court erred, without notice to the appellant, in the dismissal of Bigelow as Master and the appointment of Whitney in his place. If a Master who has conducted all the proceedings in an action for partition previous to the order of sale, upon the motion of a plaintiff, in absence of all other parties, may be instantly dismissed and another person appointed to execute that order, it would not be surprising if the plaintiff should succeed in purchasing the property at one-twelfth its appraised value. But in this case, action will not be based on the alleged inadequacy of price for which the property was sold ; nor upon the appointment of another person as Master, soon as the sale was confirmed.

Section 73 of the rules in equity provides that, ‘ ‘ All motions for rules or orders, and other proceedings, which are not grant-able of'course, or without notice, shall be made on application to the court, or a law judge at chambers, and entered in the equity docket, and shall be heard at such time thereafter as shall be assigned therefor by the court or judge at the time of the making of the application; and if the adverse party or his solicitor, after notice thereof, shall not then appear, or shall not show good cause against the same, the motion may be heard by any law judge of the court, ex parte, and granted as if not objected to, or refused, in his discretion.”

The power of the court to appoint or remove a Master is unquestioned, but the proceeding must be in accord with the rules in equity prescribed by the Supreme Court. These rules cannot be suspended by the Court of Common .Pleas, nor can that court adopt others inconsistent therewith. It has not been contended, nor could it well be, that the motion or petition was of course. To lay down a clear rule defining such motions as may be made ex parte, and distinguish them from such as require notice, has been said to be impossible. Special applications concerning the proceedings in the cause, not regulated either by the general order or by any clearly defined rule of practice, must always be made upon notice: Dan. Ch. Pr. *1790. After a cause has been referred to a Master, it cannot be withdrawn. from that Master without an order of the court, and such an order will not be made unless on very special occasions, such as the incapacity of the Master from illness to attend to the business, which, to justify such removal, must be shown to be of a very urgent nature: Id. *1347. Frequently, iu this state, the court appoints a Master pro hac vice iu the particular case, and, perhaps, less urgent reasons would induce his removal and the appointment of another. But where the cause is not referred to a standing Master the reason would seem to be stronger for giving all the parties an opportunity to be heard. Upon full hearing, the court may not find grounds for dismissing the Master, and in case of dismissal, may be better advised respecting the making of a new appointment. And where such opportunity was not given, the newly appointed Master may do important acts, such as sel ling property, without the knowledge of any of the interested parties, save those who were instrumental in procuring the change.

We are of opinion that the order of June 22d 1878, was made in violation of No. 73 of the Rules in Equity. The application should have been entered in the equity docket, a time fixed for hearing, and due notice given to other parties. The manifest spirit pervading the rules, requires a liberal construction in favor of the right of parties to notice of every application affecting their interests. They are interested in an application for the vacation of the appointment of a Master pro hac vice, and the appointing of another, and before action thereon, should be allowed a hearing.

This cause having been argued by counsel, upon consideration, it is now considered and decreed :

1. That the order made June 22d 1878, relieving Thomas S. Bigelow from his appointment as Master and appointing George I. Whitney in his stead, be reversed.

2. That the decree of May 23d 1879, confirming the sale made by said Whitney, be reversed, and that Said sale be set aside.

3. That the appellee, Robert Arthurs, pay the costs accrued since the presentment of his application, and the costs of this appeal.

4. That the record be remitted for further proceeding.