Pennypacker's Appeal

57 Pa. 114 | Pa. | 1868

•The opinion of the court was delivered, by

Agnew, J.

The objection to the jurisdiction of the court in these cases was unfounded. Executions were in the hands of the sheriff who levied upon the personal estate of the defendants. They to avoid a sale paid the money to the sheriff, at the same time giving him notice not to pay it over to the plaintiff in the executions on account of the counter claims of U. Y. Pennypacker, administrator of John E. Watson, deceased, who had notified them that the debt secured by the judgments belonged to Watson’s estate and not to plaintiff, and not to pay over the money until the right to it should be judicially ascertained. The money thus being in the hands of the sheriff was paid into court upon the motion of the attorney of the plaintiff in the executions ; and on the same day on motion of the plaintiff’s attorney, a rule was granted upon Pennypacker, the claimant, to show cause why the money should not be taken out of court by the plaintiff. Thus the court was legally in possession of the fund, and was compelled to decide the ownership of it. Pennypacker had laid formal claim to it, while the plaintiff had issued execution for it. The defendants could do nothing but pay the execution, and notify the sheriff of Pennypacker’s claim, and he could do no less than pay the money into the hands of the court to protect himself. It was precisely the case, therefore, where the law of interpleader applies both voluntarily and compulsorily. Having possession of the fund, it was the duty of the court to determine the ownership at the instance of either party. Pennypacker had the right to come in and interplead voluntarily pro interesso mo, or the plaintiff in the writs had a right to compel him to interplead in order that the controversy should be settled. Without a particular discussion of the cases the following authorities are fully up to the point and show not only the existence of the practice of inter-pleader in Pennsylvania, in the common-law courts, but that it applies to just such a case as this: Heller v. Jones, 4 Binn. 61; Coates v. Roberts, 4 Rawle 100; Wallace v. Clingen, 9 Barr 51, 52; Brownfield v. Canon, 1 Casey 301.

The appellant relies on the case of the Allegheny Bank’s Appeal, 12 Wright 328. But it affords no countenance to the doctrine it is cited to support. There a sheriff who at the time of his death had writs of execution in his hands upon which he had sold real estate, kept an account with the bank in his official character for deposits of money. His successor in office having made returns to the outstanding executions in the hands of the late sheriff of the sales of property and money made; the court, in order to get possession of the proceeds of sale supposed to be embraced in the sheriff’s bank account, ruled the Allegheny Bank to bring the money into court. It was held that there was no relation between the bank and the court which made it liable to summary process as in the case of a sheriff, attorney or other officer liable to rule and attachment. The bank was simply debtor to the sheriff, and liable to him only in a contract relation for repayment of the money, and this could only be, upon demand and refusal and by suit in which the bank could make any defence which might exist. Therefore it was held that the rule on the bank was null and void for want of jurisdiction. The next question in this case is as to the liability of Pennypacker personally for costs. After the rule was taken upon Mm to show cause against the plaintiff’s right to take the money out of court he appeared; and by consent, instead of an issue, the case was referred to an auditor before whom he also appeared. The audit- or held meetings upon nine several days, and it would seem without much having been done by Pennypacker to show his right to the money; for on the last day of the meeting he filed a paper with the auditor, declining to appear before him on the ground that the court had no jurisdiction, and stating that the auditor ought to take no further cognisance of the case. The auditor, however, reported finding that the plaintiff was entitled to the fund. This report was confirmed, and the court ordered Penny-packer to pay the auditor’s and prothonotary’s fees amounting to $113.60, on the ground that his prosecution of the claim was without the care and inquiry which ordinary prudence would have suggested, and a proper regard for the rights of others would have required. The facts upon which this conclusion of the court was founded are not before us, but we must presume were such as to justify it.*' This being the case, it is brought directly within the exception to the general rule stated in Collender’s Administrator v. Keystone Insurance Co., 11 Harris 472, and decided in Show v. Conway, 7 Barr 136, which makes an administrator liable personally for costs incurred in setting up an unfounded and vexatious claim. The ease in 11 Harris merely decides that the effect of a judgment in an action against an administrator is to throw the costs upon the estate only and not upon' the administrator himself. But Show v. Conway decides that the court by special rule may make an administrator liable personally for costs where his proceeding has been vexatious and contrary to right, and the former case expressly admits this exception. We see no error, therefore, in the order of the court, and it is accordingly affirmed.