Seltzer v. Boyer

224 Pa. 369 | Pa. | 1909

Opinion by

Mr. Justice Potter,

This appeal is from the order of the court below dismissing exceptions to the confirmation of a sheriff’s sale of real estate, confirming the sale and directing the sheriff to execute and deliver to the purchaser a deed for the premises sold.

Rebecca II. Seltzer issued a scire facias upon a mortgage of Ellen B. Boyer and her husband, Bassler Boyer, and obtained judgment against the defendants for want of an affidavit of defense. On February 5, 1908, a pluries levari facias was issued upon this judgment, and the sheriff levied thereunder upon the mortgaged premises and advertised them for sale. On February 12, the defendant, Bassler Boyer, filed a petition alleging that his wife and codefendant, Ellen B. Boyer, was insane, and had been so for over a year, and was confined under due process of law as an insane person in the Pennsylvania Hospital for the Insane at Philadelphia, and that a commission in lunacy had been awarded against her by the court of common pleas of Lebanon county, but that no committee in lunacy had been appointed for her and no person was authorized to represent or act for her in regard to her estate or receive notice, as required by law, of the intended sale of her real estate under the execution issued against it. Upon presentation of this petition, the court granted a rule to show cause why the writ of pluries levari facias should not be stayed and set aside. Thereupon, before hearing upon the rule, the plaintiff stayed the pluries levari facias.

On February 27, the plaintiff filed a petition averring that Ellen B. Boyer, one of the defendants, had been insane for upwards of a year and was an inmate of the Pennsylvania Hospital for the Insane at Philadelphia and that no committee had been appointed to take charge of her estate, and praying that the court appoint a committee ad litem for her, upon whom might be served all process, notice and pleadings in relation to the judgment and pluries levari facias. To this petition was appended a sworn statement by the physician in charge of the hospital, that Mrs. Boyer was committed according to law, and was insane. Thereupon the court appointed Bassler Boyer, husband of Ellen B. Boyer, and also a defendant, committee ad litem as prayed for in the petition.

On February 27, the sheriff served on Bassler Boyer a certificate of the order of court, appointing him committee ad litem of Ellen B. Boyer, and on March 2, Boyer filed a protest and exceptions to such appointment, and the jurisdiction of the court to make it, and moved the court to set aside the appointment. On March 4, the motion to set aside the appointment was refused.

On February 28, another pluries levari facias was issued, and on March 28, the mortgaged premises were sold by the sheriff in pursuance of such writ. The sheriff returned that he had given “due notice of said sale to Bassler Boyer, one of the defendants; to Bassler Boyer, committee ad litem of Ellen B. Boyer, the other defendant (said Bassler Boyer being designated on the record of this proceeding as having been appointed by the court of common pleas as such committee ad litem of Ellen B. Boyer); to Ellen Boyer, terre-tenant .... by serving upon each of the above named, personally, more than ten days prior to the sale, a printed handbill giving notice of said sale, the day and hour when and the place where the same shall be, and what lands and tenements are to be sold, where they lie, and a proper description of the premises.” He also returned that he had served a handbill as above described, more than ten days prior to the date of the sale, on John B. Chapin, an adult in charge of the place of residence of the defendant, Ellen B. Boyer, and upon Ellen B. Boyer personally.

The sheriff’s sale took place, Bassler Boyer giving notice that the requirements of the law as to notice of the sale had not been complied with, and therefore the sale would be without authority of law and void. The property was sold to Christian Gingrich for $5,70.0, and the sheriff so returned. Bassler Boyer as a defendant and as husband of Ellen B. Boyer, moved to set aside the sheriff’s sale on the grounds of insufficient notice and inadequacy of price, and filed exceptions to its confirmation. The court dismissed the exceptions and confirmed the sale. Defendants have taken this appeal.

The first three assignments of error are to the opinion of the court below. It has been repeatedly pointed out that it is the decree of the court below, which is assignable as error, and not the opinion: Johnston’s Estate, 222 Pa. 514; Fullerton’s Estate, 146 Pa. 61. These specifications will therefore be disregarded.

The fourth assignment is to the dismissal of appellants’ exceptions to the sheriff’s sale, and the refusal of the motion to set the sale aside. But none of the exceptions are set forth. The dismissal of each exception which appellants desire to press, should have been set forth by a separate assignment. The decree of the court below does, however, appear in this assignment. In his argument, counsel for appellants complain of the appointment of a committee ad litem. The appointment was made under the provisions of the Act of June 10, 1901, P. L. 553, sec. 1. The fact of the insanity of the defendant, Mrs. Boyer, was first put upon the record by the petition filed by her husband for the purpose of having the prior pluries levari facias set aside on that express ground, and subsequently by the petition of the plaintiff and the affidavit of the physician.

Neither the appointment of the committee ad litem, nor the dismissal of the action to set aside such appointment is here assigned for error. The record shows an appointment made under authority of the act of assembly, and the refusal of a motion to set such appointment aside, both unappealed from. On this appeal, and under the assignments of error filed, the validity of the appointment of the committee ad litem cannot be questioned. That question could be raised only by a direct attack on the decree making the appointment. Counsel further complains that the action of the judge in appointing the committee was taken in chambers. But the record does not show that such was the fact.

We find nothing in the record of this case to justify the claim that there was any failure to comply with all the requirements of the law, as to notice of the sale, and as to the manner of serving the notice. Nor is there anything in the evidence to show any abuse of discretion by the court below, in its refusal to set aside the sale, because of alleged inadequacy of price.

The judgment is affirmed.