101 Pa. 550 | Pa. | 1882
delivered the opinion of the court, December 30th 1882.
The fund in controversy is the proceeds of partnership property sold on executions against the firm of Kingsland & Reynolds. It is conceded that the execution creditors of the firm are entitled to participate in the distribution in the order of their respective writs; but it is contended that the claim of the Second National Bank of Titusville, for which it obtained judgment and issued the first execution, never was a debt of the firm. In this the appellants are sustained by the report of the learned auditor, who, upon evidence of the most satisfactory character, found that the claim of the bank originated in a note for $1,200, made by Reynolds, one of the partners to the order of and iudorsed by Bennett, at whose instance the same was discounted by the bank for the individual benefit of the maker. When the note matured it was renewed for sixty days; but about two weeks thereafter, the bank, through the intervention of the indorsor, procured a judgment note from Reynolds, for the same amount, signed by him in the firm name, and by himself individually. On that note judgment was immediately entered and the execution in question issued.
It is unnecessary to refer particularly to the testimony upon which the Auditor based his conclusion that the claim of the bank was originally the personal debt of Reynolds and never became the debt of the firm. The presumption is that the finding of the Auditor is correct; but, even if we were to reverse the well established rule on that subject, the decided preponderance of the evidence would constrain us to say his conclusion was clearly .right, and that the bank must have known the debt was one for which the firm was not liable. Why then should the individual creditor of Reynolds be permitted to take the
It is also contended that the judgment and execution of the bank cannot be questioned in this collateral proceeding, especially since the conrt refused, on the application of Kings-
The facts of the case before us bring it fairly within the principle recognized in the cases above cited, and we are therefore of opinion that the learned judge erred in sustaining the exceptions to the auditor’s report and awarding the money to the appellee’s execution.
Decree reversed; and it is now adjudged and decreed that the auditor’s report be confirmed and the fund distributed in accordance therewith; and it is further ordered that the Second National Bank of Titusville forthwith pay into the court below the money erroneously awarded to and received by it, together with the costs ©f this. appeal.