text:
    Reis v. McDevitt, Appellant.

      Mortgage — Default—Scire facias clause — Time.
    Where a scire facias clause in a mortgage provides that if default be made of principal or interest or any part thereof, when due and payable for the space of thirty days, the whole of said principal, debt and interest unpaid shall then become due and payable forthwith, the whole principal debt and interest does not become due, and no suit for their recovery can be instituted until the expiration of thirty days from the date specified for their payment.

      Practice, C. P. — Parties—Contract—Assumption of 'payment of municipal liens and taxes.

    Where a purchaser of real estate agrees to assume payment of certain municipal liens and county taxes, and also the payment of a mortgage on the land, but fails to do so, the seller in an action against the purchaser to recover for breach of contract cannot join as plaintiffs in the action the municipality and the county to which the unpaid liens and taxes are due.
    Argued Oct. 28, 1907.
    Appeal, No. 29, Oct. T., 1907, by defendant, from order of C. P. No. 3, Allegheny Co., Aug. T., 1905, No. 793, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Charles Henry Reis, Administrator c. t. a. of the Estate of Henry Reis, deceased, and Charles Henry Reis, Administrator c. t. a. of the Estate of Henry Reis, deceased, for the use of J. Erastus McKelvy, the County of Allegheny and Wilkinsburg Borough v. Mary McDevitt.
    Before Mitchell, C. J., Fell, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Assumpsit for breach of contract.
    Rule for judgment for want of a sufficient affidavit of defense.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was the order of the court.

      A. W. Duff, with him H. E. Carmack, for appellant.

      W. Clyde Grubbs, for appellee.
    January 6, 1908:
   Opinion by

Mr. Justice Elkin,

The learned court below on the pleadings entered judgment for want of a sufficient affidavit of defense. This appeal challenges the correctness of that ruling. The proceeding is out of the ordinary and somewhat unusual. The administrator of the estate of the decedent, Reis, has brought an action of assumpsit to recover not only an alleged balance due the estate of said decedent, secured by a mortgage not yet due, but in addition thereto claims the right in this single action to include the amount of the McKelvy mortgage, certain municipal liens in favor of the borough of Wilkinsburg, and taxes due the county of Allegheny. In other words, the appellee stands as the legal plaintiff, claiming to recover certain moneys for the use of the three parties last named. The right to thus proceed is predicated upon the following statement of facts: In his lifetime Reis, the decedent, conveyed to the appellant an undivided one-half interest in certain real estate for a consideration of $5,500. At the time of the conveyance the property was subject to the lien of a mortgage held by McKelvy, amounting to $2,650, payable in two equal annual installments, which said mortgage appellant assumed to pay as part of the consideration for her undivided one-half interest in said property. The borough of Wilkinsburg had entered municipal liens for improvements made during the time Reis owned the property, and in addition taxes were due the -county of Allegheny and unpaid. At the time of the conveyance the exact amount of the liens and taxes had not been ascertained, but it was estimated to be about $1,100. Appellant paid in cash $823.50, and agreed to give her mortgage for the balance due Reis, which would be the difference between the purchase price and the amount paid, and assumed to be paid, as hereinbefore stated. Her undertaking to do all these things was evidenced by an agreement in writing bearing even date with the execution and delivery of the deed. The municipal liens were entered and the county taxes levied against Reis, the then owner of the property, who was primarily liable for their payment. At a subsequent date ■ appellant assumed the payment of the municipal liens and taxes, and executed a mortgage on her undivided half interest in the property in the sum of $1,000, with the understanding that she should receive a credit upon said mortgage for the excess, if the total amount of the Mc-Kelvy mortgage assumed by her, the hand money paid, and the municipal liens and taxes, together with the mortgage thus executed by her, exceeded $5,500, the purchase price agreed upon. According to the terms of the agreement the mortgage executed by appellant was made payable, one-half in three years and one-half in four years, with interest from September 28, 1904, the date of the deed. This suit was brought August 2, 1905, on one ground, among others, as contended, that there was a breach of the covenant contained in the agreement whereby appellant assumed to pay the McKelvy mortgage according to its terms. The breach relied on to show default in payment is set out in the amended statement of claim in the following language, to wit: And also refused to pay the first installment of $1,320, with interest upon the whole of said principal debt due under the terms of said mortgage upon the 29th day of July, 1905, by reason whereof the whole of said mortgage has become due and payable.” We cannot read this language to mean anything else than that the default relied on in the pleadings was the failure to pay the installment of mortgage due and interest accrued on July 29, 1905. It is so stated in express language, and the case having been decided upon the record as it stood the parties are bound thereby. The mortgage contained a scire facias clause which provided that in case of default being made in the payment of principal or interest, or any part thereof, when due and payable for the space of thirty days, the whole of said principal debt and interest unpaid shall then become due and payable forthwith. In other words, the mortgagee could not proceed to collect the whole principal debt and interest until thirty days from the date when either the interest or principal was due. Failure to pay the installment due July 29, 1905, would not give the mortgagee the right to collect the whole principal sum and interest due until thirty days thereafter. It seems clear, therefore, that this suit having been instituted four days after the first installment became due, was prematurely brought. The answer of the learned counsel for appellee is that the interest due on the mortgage January 29, 1905, had not been paid, and that appellant was in default in thirty days after that date, but it is not so alleged in the statement of claim, nor does it appear in the record that the semiannual interest due at that time had not been paid.

Again, the appellee, under the facts of the present case, cannot maintain an action as legal plaintiff for the use of the borough of 'Wilkinsburg and the county of Allegheny. The right of the legal plaintiff is the only one in issue, and the use plaintiff must recover on that right, if at all: Guaranty Trust, etc., Co. v. Powell, 150 Pa. 16; Com. v. Philadelphia County, 193 Pa. 236; Com. v. Schadt, 214 Pa. 592. It was said by the present chief justice in Guaranty Co. v. Powell: “ There is no precedent for putting the cart before the horse by allowing the legal plaintiff, without title of his own, to recover on the title of the plaintiff to use.” This is precisely what was done in the case at bar. The county of Allegheny and the borough of Wilkinsburg are the legal plaintiffs entitled tq the sums due for municipal liens and taxes. The administrator of the estate of the decedent, the appellee here, can in no proper sense be considered a legal plaintiff under the facts of the present case. The estate of the decedent has no legal right to the municipal claims or the county taxes. An entirely different question might arise if, in point of fact, the decedent, Reis, or his administrator, had actually paid the amount of the municipal liens and county taxes. Under such circumstances he. could recover the money so paid on the express promise of appellant to pay such sum or sums as a part of the consideration for the property purchased by her. In such event, however, neither the borough nor the county would have any direct interest- in the controversy, because the amount due these municipalities would then have been paid. Moreover, it is perfectly clear that neither the county nor the borough are in any way affected by the contract entered into between the decedent and appellant. It was within their power to have proceeded to collect- the amount of the municipal liens and taxes in the. regular and orderly way prescribed by the statutes.

We therefore hold that the suit was prematurely brought; that the parties have been improperly joined ; that the judgment in the court below was improvidently entered, and that this action in its present form cannot be maintained. Our decision in this case must not be understood to in any way affect the legal rights of the parties to be determined by proper proceedings in the future.

Judgment reversed.


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    Munson, Appellant, v. Crookston.

      Appeals — Assignments of error — Evidence.
    Assignments of error to the admission of testimony will not be considered where the testimony objected to is not quoted in the assignment.

      Evidence — Witness—Competency of witness — Party dead — Husband and wife — Devolution of title — Tenancy by the curtesy.

    In an action of ejectment where the defendant claims possession as a tenant by the curtesy of his deceased wife’s real estate, and the plaintiffs claim as devisees under the deceased wife’s will against which the defendant had claimed to take, the husband is not a competent witness as to matters occurring in the wife’s lifetime. In such a case the claims of the parties are of different classes, and are not within the exception of the Act of May 23, 1887, P. L. 158, sec. 5, cl. (e).

      Evidence — Declarations—Husband and wife.

    In such an action declarations of a wife in the absence of her husband fall into two classes, those in her own favor and those against her interest. The latter are admissible, but the former are not.
    Argued Oct. 29, 1907.
    Appeals, Nos. 32, 33, 34, 35, 36 and 37, Oct. T., 1907, by Sidney A. Munson et al., from judgment of C. P. No. 2, Allegheny Co., Oct. T., 1903, Nos. 284, 285, 286, 287, 299 and 300, on verdict for defendant in cases of Sidney A. Munson et al. v. William Crookston.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Ejectment for land in borough of Pitcairn.
    At the trial it appeared that the plaintiffs claimed under the will of Agnes Crookston, deceased, while the defendant, the husband of the deceased, claimed possession as tenant by the curtesy, having elected to take against his wife’s will. The plaintiffs alleged that the defendant had deserted his wife, and that consequently the defendant was not entitled to his curtesy.
    The court, under objection and exception, excluded evidence offered by the plaintiffs of declarations made by Mrs. Crookston in the absence of her husband. [1-12]
    The court admitted, under objection and exception, the testimony of Wm. Crookston as to matters occurring in the lifetime of his wife. [13-16].
    The court charged in part as follows:
    [Now, as to the time they lived together, up to September 21, 1901 (1896)j or at least until the fall of that year, I think I shall have to say to you, there is no evidence which would justify you in finding that he neglected or refused to provide for her.
    We have here evidence that she paid bills, and perhaps she paid the larger part of them. We have some evidence that he paid bills, but where a man is living in his wife’s house and his wife has property or money and she chooses to pay the bills, and he does not pay any bills, that is not a neglect or refusal to provide for his wife, because his wife has as much right to give him the rent of a house, or to give him the groceries or things he eats as she has to give him anything else, and the presumption would be that if she did that she was giving them to him, and therefore there is no neglect or refusal on his part to provide. The question would, therefore, be as to what took place after that time, and I imagine there is very little difference between the questions as to whether he neglected to provide for her and whether he deserted her, because if he deserted her, of course he didn’t provide for her, and if what he did was not a desertion, and she claimed the right and undertook to stay where she pleased, without going with him, then he would not be bound to provide for her. So substantially the question is all one, whether or not he deserted her after this date in September.] [20]
    [Now if William Crookston, after he went away from his wife’s house on this occasion, had a place for his wife to come to, whether his children were with him or not, and she knew that, and he asked her to come there and she did not come to live with him, but persisted in living in her own house or going elsewhere, then he did not desert her, but, on the contrary, she would in that way have deserted him.] [21]
    Verdict and judgment for defendant. Plaintiffs appealed.

      Errors assigned among others were rulings on evidence [1-21], and above instructions, quoting them.

      John P. Hunter, of Lyon, Hunter & Burke, with him George N. Chalfant, for appellants.

      C. C. Dickey, with him W. K. Shiras, for appellee.
    January 6, 1908:
   Per Curiam,

The offers to show declarations of the wife in the absence of the husband fall clearly into two classes, those in her own favor and those against her interest. Under the settled rules of evidence the latter were admissible, but the former were not. The learned judge below followed the rule.

Several of the assignments of error are rendered ineffective by failure to regard the rules of court. Objections were made to testimony offered, the objections were overruled and appellant excepted. But the testimony so objected to is not quoted in the assignment as required by rule 31, and there is, therefore, nothing on the record to show that even if improperly admitted it did the appellant any injury.

William Crookston, the surviving husband, was not a competent witness, and should not have been admitted to testify to matters occurring in the wife’s lifetime. Under clause (e) of sec. 5 of the evidence Act of May 23, 1887, P. L. 158, no person whose interest shall be adverse to the right of a deceased party shall be a competent witness to any matter occurring before the death of such party. The exception in the same section, “ unless the issue or inquiry be devisavit vel non, or be any other issue or inquiry respecting the property of a deceased owner, and the controversy be between parties respectively claiming such property by devolution on the death of such owner, in which case all persons shall be fully competent witnesses,” does not apply. The husband here claimed by devolution of law, that is, as tenant by the curtesy, an estate by descent, Cooke v. Doron, 215 Pa. 393, while the plaintiff claimed under the wife’s will, that is, by purchase. He therefore stood in her place, and the husband’s claim was adverse to her title which the plaintiff represented. Had the plaintiff claimed as heir or next of kin he would have claimed by devolution as the husband did, and both would have been competent witnesses under the exception quoted. But as the case stands, their claims are of different classes, and they are not within the exception of the statute: Rine v. Hall, 187 Pa. 264, 276; King v. Humphreys, 138 Pa. 310; Crothers v. Crothers, 149 Pa. 201; Baldwin v. Stier, 191 Pa. 432; Myers v. Litts, 195 Pa. 595; Shroyer v. Smith, 204 Pa. 310.

But the admission of the husband as a witness, though an error, did the appellant no injury for he had already failed to establish his cause of action. All the testimony given, even if the offers which were rejected should be included, show nothing more than quarrels, dissatisfaction with, the presence of the husband’s children by a former marriage, payment by the wife of many if not most of the bills, and other causes of dissension, but all of these together fall far short of showing desertion. The plain result of the whole was to show that the wife being dissatisfied with the domestic situation, preferred to live apart, and therefore left the husband. The judge in a careful and elaborate charge submitted the question to the jury. He might well have directed a verdict for defendant.

Judgment affirmed.


author: Mr. Justice Brown,

text:
    Fleming’s Estate.

      Trusts and trustees — Spendthrift trust — Devise—Power of appointment.

    Where a testator devises all of his real estate to trustees for a period of fifteen years after his decease, to pay the net income therefrom to his children, share and share alike, the real estate not to be liable for any debts of any of his children, and none of his children to have the right to sell, pledge or anticipate the income, or to sell or incumber their interest in the real estate, with the further provision that the death of any child shall not affect the trust, the share of one so dying to “descend to his, her or their heirs at law or devisees subject to all the conditions herein named,” the devisees of a child dying before the expiration of the fifteen years are entitled to the enjoyment of the child’s share of the trust fund, free from any claims of the creditors of the deceased child.
    Argued Oct. 29, 1907.
    Appeals, Nos. 41, 42, 43 and 45, Oct. T., 1907, by Joseph Fleming & Son Company, John A. Staley, F. W. Mueller and North American Savings Company, from decree of O. C. Allegheny Co., Sept. T., 1906, No. 374, dismissing exceptions to adjudication in Estate of George S. Fleming, deceased.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Exceptions to adjudication.
    The opinion of the Supreme Court states the case.

      Error assigned was the decree of the court.

      Joseph Stadtfield, for appellants.
    That construction will be adopted which makes the estate vest absolutely at the earliest possible period: Tatem v. Tatem, 1 Miles, 309; Smith v. Myers, 212 Pa. 51; Safe Deposit & Trust Co. v. Wood, 201 Pa. 420; Smith’s Estate, 189 Pa. 587.
    The interest of George being a vested remainder, the enjoyment of possession alone postponed, by operation of law the debts become a charge or lien upon such interest.
    The right of disposition by will, to take effect in enjoyment at the expiration of fifteen years, was as broad as the same right in case of a child surviving until the end of that period.
    The donee of a power of appointment may either in express terms, or by implication, render the estate over, which he has the power, assets for the payment of his debts: Stokes’s Est., 3 Pa. C. C. Rep. 193; Horner’s Est., 4 Pa. C. C. Rep. 189; Morris v. Phaler, 1 Watts, 389.

      J. S. Ferguson, with him W. J. Brennen, for appellees.
    — It is clear that so long as this property remained in the hands of the trustees, that is, during the fifteen years, it could not be levied upon and sold under any judgment against George S. Fleming: Beck’s Est., 133 Pa. 51; Goe’s Est., 146 Pa. 431; Comly’s Est., 136 Pa. 153; Barker’s Est., 159 Pa. 518.
    The mere exercise of a general power of appointment does not in this state, as it does'in England, make the estate passing under the appointment eo facto assets for the payment of the debts of the estate: Com. v. Duffield, 12 Pa. 277; Swaby’s Appeal, 14 W. N. C. 553; Com. v. Williams, 13 Pa. 24.

      January 6, 1908:
   Opinion by

Mr. Justice Brown,

Joseph Fleming died May 15, 1890. The fourth clause of his will is as follows: “ All of the real estate which at the time of my death I may own that is situated in the city of Pittsburg, Pa., I give, bequeath and devise to my said hereinafter named executors, or the survivor of them, in trust for the following uses and purposes and not otherwise : For the period of fifteen years after my decease my said executors, or the survivors of them shall take charge of said real estate, keep the buildings and improvements thereon insured, and in good repair, rebuild the same in case of fire, keep the same rented and collect the rents thereof and after deducting taxes, cost of insurance repairs, &c., the net income derived therefrom shall be divided and paid over quarterly to and among my six children George S. Fleming, Sallie, wife of G. A. Hays, Emma, wife of Bobert F. Shannon, Bessie, wife of John Warden, and Annie and Mattie Fleming. During the said term of fifteen years said real estate shall not be liable or subject to any execution or other legal process for any debt liability or engagement of any of my children. Hone of my children shall during said term have the right to sell, pledge or in any other way anticipate their respective shares in the rents or income of said real estate nor shall they have the power to sell, mortgage or otherwise encumber their prospective interests therein. At the expiration of said term of fifteen years after my decease, the said trustees or the survivor of them shall cause said real estate to be fairly valued and appraised and shall divide the same equally among my six children above named, or if any of my said children shall have died before the time for such division, to the children then living and the heirs at law or devisees of the child or children who shall have died, the said trustees shall execute and deliver any necessary and proper conveyances or papers for these shares or interests to those respectively entitled thereto. The death of any of my children shall not in any wise affect the provisions of this trust but the share or shares of the one, or of these, so dying shall descend to his, her or their heirs at law or devisees subject to all the conditions herein named.” George S. Fleming died August 13, 1904, within the fifteen year trust period created by his father’s will. By his will, executed September 26, 1903, George directed that his debts be paid, and, after making a bequest of $25,000 to W. J. Brennen, gave and devised the residue of his estate to his wife. The fund distributed to Brennen and George’s widow is the proceeds of the sale in proceedings in partition of the land devised by Joseph Fleming in the above quoted clause of his will. George’s estate was insufficient to pay his debts, and his creditors claimed to be paid the balance due them out of the fund raised from the sale of Joseph Fleming’s real estate in the partition proceedings. They make this claim upon these grounds: (1) George S. Fleming had a vested interest in his father’s real estate; or, if not (2) his direction to pay his debts was an exercise of his power of appointment in favor of his creditors which was operative to charge the fund. The court below excluded the creditors from it and awarded it to the legatee and widow.

If the will of Joseph Fleming has directed to whom and under what conditions the fund before us shall go, it cannot go elsewhere, and the conditions of the devise of the interest to George in the land which the fund now represents must prevail. At no time during the fifteen years succeeding his father’s death could the interest of George in the estate have been made liable for any of his debts. He could not, during that period, have even pledged his income from it to a creditor, because his father had so directed, but the direction of the testator -went still further and prohibited him from selling,' mortgaging or otherwise incumbering his “ prospective ” interest in the real estate. The testator himself designates this interest as prospective, and, as was properly held by the learned president judge below, it was made a condition of conveyance to the children that they survive the trust.” If any one of them should die during the continuance of it, his or her interest was to pass to substitutionary persons named by the testator, “ the heirs at law or devisees of the child or children who shall have died.” Upon the death of a child during the fifteen years, his or her interest in the father’s estate ceased and descended to “ his or her heirs at law or devisees subject to all the conditions herein named.” The only power which a child could exercise over his prospective interest was to devise it. Without a devise of it, it descended to the heirs of the child dying during the period. But whether 'descending to heirs or passing to devisees, the testator, who had the right to do so, in disposing of his own property, imposed the condi- ' tion of absolute immunity from any debt of a deceased child. His words are that the devisees.of a deceased child shall take his or her interest in the land, “ subject to all the conditions ” named in the will, and the condition is, Hone of my children shall during said term have the right to sell, pledge or in any other way anticipate their respective shares in the rents or income of said real estate nor shall they have the power to sell mortgage or otherwise encumber their prospective interests therein.” Upon the death of George his interest in his father’s real estate passed to his devisees, who at once became substituted by his father’s will for him in the enjoyment of the income for the remaining portion of the fifteen years, and, at their expiration, were entitled to a conveyance from the trustee of his interest in the land itself. When he devised his interest to them and the devise became effective during the fifteen years; it was as free from any liability for his debts as it had been before he died. As there was nothing for his creditors in his father’s estate while he lived, there was nothing for them after his death, for when he died his interest ended and passed to others under a power of appointment which exempted it from his liabilities.

Appeal dismissed and decree affirmed.


author: Mr. Justice Stewart,

text:
    Clark, Appellant, v. A. Garrison Foundry Company.

      Negligence — Master and servant — Dangerous machinery — Instructions,
    In an action of trespass by an employee against his employer to recover damages for personal injuries, where there is no averment in the statement of claim that the defendant was negligent in failing to give proper instructions as to the machine at which plaintiff was injured, or as to the proper and safe method of its employment, it is not error to reject evidence that machines of the character in question were dangerous, and called for instructions as to the method of their use so as to avoid accident.
    Where an employee is injured by the blowing out of a stopcock of a whitewashing machine operated by compressed air, and there is no evidence whatever of any defect in the construction or material of the machine, and nothing to show that it was worn or in any way out of repair, the employee cannot recover, and if he brings an action against his employer he is properly nonsuited. The mere happening of such an accident raises no presumption of negligence on the part of the employer.
    Argued Oct. 29, 1907.
    Appeal, No. 45, Oct. T., 1907, by plaintiff, from order of C. P. No. 1, Allegheny Co., June T., 1904, No. 26, refusing to take off nonsuit in case of Frank Clark v. A. Garrison Foundry Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries.
    Before Macfarlane, J.
    The opinion of the Supreme Court states the case.

      Error assigned was the order of the court.

      Horace J. Miller, with him James E. Hindman, for appellant.

      Wm. S. Dalzell, of Dalzell, Fisher & Hawkins, for appellee.
    January 6, 1908:
   Opinion by

Mr. Justice Stewart,

The machine which was being used by the plaintiff when his injury was received was a whitewashing machine, operated by compressed air stored in a cylinder attached. It is not charged, either in the original or amended statement of plaintiff’s claim, that defendant was negligent in failing to give proper and adequate instructions as to the nature and character of the machine, or in regard to the proper and safe method of its employment. What these instructions were, with the length of time occupied in giving them, is fully set out; both statements then proceed in this way: “ Plaintiff therefore continued at said work for the period of two weeks without further instructions as to the condition, construction or manipulation of said machine, or warning as to any danger in connection therewith.” No other reference is made in either statement to the instructions given, and it is nowhere charged that they were insufficient, or that plaintiff’s injuries resulted because of any inadequacy in the instructions. It follows that there -was no error in rejecting the several offers to prove by the witness, Brown, that machines of the character of the one used were dangerous and called for instructions as to the method of their use so as to avoid accident. Aside from this, the court would have been fully warranted in refusing the offer in view of plaintiff’s own admission as to the instructions he had received. The only negligence charged was that defendant had failed to provide plaintiff with a safe appliance with which to work; that the whitewashing machine given him was defective in construction in that the stopcock on it was not securely fastened down, in consequence of which fact it blew out, releasing a quantity of lime which struck the plaintiff in the eyes and caused his injury. In this connection it was proposed to ask the witness Brown whether he had ever known these machines to blow out at the stopcock. The only evidence offered in support of this averment was that the stopcock had actually blown out, but from what cause does not appear. The inference sought to be drawn was that it was from faulty construction, but as the court said, in refusing to take off the nonsuit, “ There was no evidence as to any defects in the construction or material of the valve, nothing to show that it had worn out or was in any way out of repair, nothing to fix the defendant with any responsibility for this accident. The jury could not be allowed to guess whether this was a proper appliance or the origin and cause of the accident.” The mere happening of this accident — and the evidence discloses nothing beyond— raises no presumption of defendant’s negligence.

Judgment affirmed.


text:
    Pettit v. Clever, Appellant.

      Appeals — Judgment—Quashing appeal — Mortgage.
    No appeal lies from a judgment entered by the prothonotary as a matter of course with no order or intervention by the court. If the judgment is improperly entered, relief from it must be asked from the court in which it is entered, and if the court denies such relief, an appeal may then be taken.

      Argued Oct. 29, 1907.
    Appeals, Nos. 30 and 49, Oct. T., 1907, by defendant, from entry of judgments in C. P. No. 2, Allegheny Co., Jan. T., 1907, No. 342, and No. 3, Feb. T., 1907, No. 269, in cases of Clarence Pettit et al., Executors of Adaline Marshall, deceased, v. Robert F. Clever.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Appeal quashed.
    Entry of judgment on bond accompanying mortgage.
    Entry of judgment on return of two nihils.
    The opinion of the Supreme Court states the case.

      Error assigned various reasons for holding the judgments irregular and erroneous.

      Robert F. Clever, for appellant.

      John W. Chalfant, Jr., with him John C. Slack and Charles Hoopes, for appellee.
    January 6, 1908:
   Opinion by

Mr. Justice Brown,

A sci. fa. sur mortgage, in which this appellant was mortgagor, was issued out of the court of common pleas, No. 2, of Allegheny county, and, on December 14, 1906, upon two nihil returns, judgment was entered against him in default of an appearance. Without asking the court below for relief from this judgment, ho appealed directly to this court on December 20, 1906, and has filed what he terms “ specifications of error.” They are nine in number, and each one is but an allegation that the judgment is “ irregular and erroneous,” for reasons stated. On January 18, 1907, judgment was entered against the appellant in the court of common pleas, No. 3, of the same county, on his judgment bond accompanying the mortgage. He pursued the same course as to this judgment, and, on his appeal from it, alleges in what he again terms, “ specifications of error,” that it is “ irregular and erroneous,” and that the entry of it was “ an attempt to circumvent and render useless ” his former appeal.

Appeals are taken that errors alleged to have been committed by a court below may be properly assigned and corrected, if found to have been committed, but when the court below has done nothing, there is nothing to be corrected. This is the situation here. Nothing was done by either court, and nothing is assigned as error by either. Each of the judgments was entered by the prothonotary, as a matter of course, with no order or intervention by the court. If either was improperly entered, and is, as alleged, irregular and erroneous, relief from it ought to have been asked from the court in which it was entered, and, from the action of that court, if the relief asked for had been denied, an appeal would have lain. By these appeals we are asked to assume original jurisdiction. Counsel for appellee have not asked us to quash them, but we must do so of our own motion. “ We certainly will countenance no procedure which passes the bar of the legitimate tribunal, and, in the garb of a writ of error, would give us original jurisdiction:” Wilson v. Colwell, 3 Watts, 212.

Appeals quashed. •


text:
    Tibby Brothers Glass Company, Appellant, v. Pennsylvania Railroad Company.

      Railroads — Merger—Parallel and competing lines — Equity—Act of June 19, 1871, P. L. 1360 — Constitutional law.

    An individual landowner has no standing to maintain a bill in equity under the Act of June 19, 1871, P. L. 1360, against a railroad company-to enjoin a condemnation of his land, on the ground that the condemning company was constituted by a merger of two other railroad companies under the Act of March 22, 1901, P. L. 53, that such companies before the merger were parallel and competing companies, and that the merger therefore violated article XVII, sec. 4 of the constitution of Pennsylvania, which forbids railroad companies owning parallel or competing lines from being consolidated. The question of the validity of such merger can only be raised in a proper proceeding by the commonwealth.
    Argued Oct. 29, 1907.
    Appeal, No. 53, Oct. T., 1907, by plaintiff, from decree of C. P. No. 3, Allegheny Co., Nov. T., 1905, No. 70, dismissing bill in equity incase of Tibby Brothers Glass Company v. Pennsylvania Railroad Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for an injunction.
    Before Evans, J.
    From the record it appeared that the plaintiff is a corporation owning a manufacturing plant in the borough of Sharps-burg, and the owner of a tract of land lying along the right of tvay of the Western Pennsylvania Railroad. The Pennsylvania Railroad Company filed a bond in condemnation of a portion of this land, and claimed to exercise the right by reason of merger proceedings betAveen itself and the Western Pennsylvania Railroad Company under the Act of March 22, 1901, P. L. 53. The plaintiff alleged that the Pennsylvania Railroad and Western Pennsylvania Railroad were parallel and competing lines, and that the merger Avas Avholly invalid as contravening the provisions of article XVII, sec. 4, of the constitution of the state.
    The court dismissed the bill on the ground that the plaintiff as an individual landoAvner had no standing to maintain it.

      Error assigned was the decree dismissing the bill.

      Willis F. McCook, with him Frank R. Agnew, for appellant.
    These two railroads are in a legal sense both parallel and competing. Their merger was illegal: State ex rel. v. Montana Ry. Co., 45 L. R. A. 271; Texas & Pacific Ry. Co. v. Ry. Co., 41 La. Ann. 970 (6 So. Repr. 888); L. & N. Ry. Co. v. Com., 161 N. S. 677 (16 Sup. Ct. Repr. 714); Gulf Coast & Santa Fe Ry. Co. v. State, 72 Texas, 404 (10 S. W. Repr. 81).
    Equity will look at the substance and will penetrate all disguises of form and disregard names to discover the true nature of a contract and will deal with it accordingly: Salt Co. v. Guthrie, 35 Ohio, 666; United States v. Northern Securities Co., 120 Fed. Repr. 721.

      Thomas Patterson, of Patterson, Sterrett & Acheson, for appellee.
    January 6, 1908:
   Opinion by

Mr. Justice Brown,

The court below found that the land of the plaintiff which the Pennsylvania Railroad Company would condemn for railroad purposes is “ necessary for the needs of that company in its operation of the Western Pennsylvania Railroad under the agreement of merger.” This agreement was made under the Act of March 22, 1901, P. L. 53, all of the provisions of which were complied with, and, if legal, all the corporate rights, franchises and privileges of the Western Pennsylvania Railroad Company have been acquired by the Pennsylvania Railroad Company. It is not disputed that the former company, if still maintaining its separate corporate existence, would have the right to take the land of the appellant for railroad purposes, but it is insisted that the Pennsylvania Railroad Company acquired no such right by the merger, because the same is in contravention of art. XVII, sec. 4, of the constitution, which is as follows: “ No railroad, canal or other corporation, or the lessees, purchasers or managers of any railroad or canal corporation, shall consolidate the stock, property or franchises of such corporation, with, or lease, or purchase the works or franchises of, or in any way control, any other railroad or canal corporation, owning or having under its control a parallel or competing line; nor shall any officer of such railroad or canal corporation act as an officer of any other railroad or canal corporation owning or having the control of a parallel or competing line; 'and the question whether railroads or canals are parallel or competing lines shall, when demanded by the party complainant, be decided by a jury, as in other civil issues.” The position of the appellee, as frankly stated by its learned counsel, is: “ If the merger is legal, the defendant has the right to take the plaintiff’s property; if it is not legal, it has not the right to take the plaintiff’s property.”

Tho court below did not pass upon the legality of the merger, but dismissed the bill on the sole ground that the appellant could not raise the question in this proceeding.

After the provisions of the act of 1901 are complied with by railroad companies contemplating merger and a copy of the agreement to merge, with the required certificates attached, has been filed in the office of the secretary of the commonwealth, all the corporate rights, franchises and privileges ” of the vendor corporation ’’.become vested in the acquiring corporation,” and the rights, franchises and privileges thus acquired become part of its charter. It is sufficient for the acquiring company, when taking land necessary for the operation of the acquired road, to show that such road possessed such right. This is what the appellee did by pointing to its enlarged charter as evidence of the right which it had acquired from the state through the Western Pennsylvania Railroad Company. Answer is made to this that the companies were not legally merged, that the merger is in contravention of the constitution and, therefore, void; in short, that there is no merger. This may be so, and, even though the appellee holds in its hands statutory authority for what it proposes to do, if the agreement of merger and the acceptance and filing of a copy of it by the secretary of the commonwealth did not give to the Pennsylvania Railroad Company the right of eminent domain possessed by the Western Pennsylvania Railroad Company, for the reason that the merger was not permissible under the constitution, the appellee does not possess such right; and, when challenged in a proper proceeding by the commonwealth to show its authority to exercise the same, it may be confronted with the finding of a fact by a jury, in the face of vffiich the merger was not permissible and the authority that would be exercised does not exist.

The constitutionality of the act of 1901, providing for mergers, is not questioned, but it is contended that, as a matter of fact, these two companies were parallel and competing lines, and the merger permitted by the commonwealth is, therefore, to be treated as a nullity. Whether the merger ought to have been permitted, and whether the appellee ought to be permitted to exercise the right of eminent domain clearly conferred by it, are not questions to be determined in this proceeding. It must be regarded as having been instituted under the Act of June 19, 1871, P. L. 1360. As to this the learned court below properly said: “ This case is not similar to one in which the plaintiff is attempting to abate a public nuisance, because of some special and peculiar injury done to him; and, unless the act of 1871 justifies the filing of this bill, it must be dismissed.” The sum of the averments of the bill is but a denial of appellee’s right of eminent domain in taking appellant’s property. When it affirmatively appeared that a merger had been permitted, and that as a result of it there had been acquired by the appellee the right to take the land of the appellant in the operation of the merged road, the court was bound, under all of our cases, to dismiss the bill. In Windsor Glass Co. v. Carnegie Co., 204 Pa. 459, we said, through the present chief justice : The Act of June 19, 1871, P. L. 1360, gives courts the right of inquiry, at the instance of private parties, into the existence and extent of franchises conferred by corporate charters when the latter are set up in support of acts injurious to the individual parties complaining. The language is: c In all proceedings .... in which it is alleged that the private rights of individuals, or the rights or franchises of other corporations, are injured or invaded by any corporation claiming to have a right or franchise to do the act from which such injury results, it shall be the duty of the court .... to examine, inquire and ascertain whether such corporation does in fact possess the right or franchise to do the act from which such alleged injury .... results; and if such right or franchise has not been conferred upon such corporation, such courts shall enjoin or award damages,” etc. After citing several of the cases sustaining this, it was further said : “ These cases are conclusive that under the act of 1871 the inquiry is limited to the grant in the charter to do the thing complained of. If the power is there given, the authority of the court to interfere is at an end. The further questions of good faith in obtaining the charter or in acting under it can only be raised by the commonwealth.”

The question whether railroads are parallel or competing lines “ shall, when demanded by the party complainant, be decided by a jury, as in other civil issues.” If a private individual may become the complainant under this constitutional provision, the confusion which would certainly follow at times would be worse confounded,” and conditions not only possible, but probable, arise, which no one can pretend could have been contemplated by the framers of the constitution. In the present case a jury might find that the lines of these two railroad companies are not parallel or competing, and, upon such finding, the land of the appellant could be taken. Such a finding would be conclusive upon no other owner of property along the line of the Western Pennsylvania Railroad Company. Any other property owner in the same county, if the appellee should subsequently attempt to take his land, would have the right to make the same complaint as has been made by this appellant, and to demand a jury trial on the question of the legality of the merger. A second jury would be free to find differently from the first and to declare the merger illegal, the effect of which would be to protect the second complainant’s land from condemnation, though his neighbor’s had been taken. And so all along the line of the Western Pennsylvania Railroad Company, at certain points, by the finding of a jury, the appellee would possess the right of eminent domain, while at others it would not. If the position of counsel for appellant should be sustained, this is the inevitable condition that would follow as certainly as findings of juries differ upon the presentation of the same state of facts. The complainant to raise the question of parallel or competing lines is the commonwealth, and it, in a single proceeding for all the people, can have, if necessary, a finding of a jury to determine whether the merger it permitted should have been refused. A decree or judgment based upon such a finding will be followed by no confusion, and every landowner from one end to the other of the line of a railroad company that would merge, will know definitely whether his property can be taken by the acquiring company in the merger agreement.

The assignments of error are all dismissed, and the decree affirmed at appellant’s costs.


author: Mr. Justice Mestrezat,

text:
    McClain, Appellant, v. Pittsburg Stock Exchange.

      Assignment for creditors — Refusal of assignee to act — Title to property— Seat in stock exchange — Receiver—Act of June 14, 1836, P. L. 628.
    A deed of assignment for the benefit of creditors, duly recorded, vests in the assignee the title of the assignor, independent of the fact whether the assignee accepts or declines the trust. No trust will be permitted to fail or become noneffective by reason of the failure of the trustee to accept and perform the entries imposed by the trust. The deed of assignment conveys the property and creates the trust, and thereafter it is not in the power of the assignor or the assignee to defeat the trust. If the assignee renounces the trust, or refuses to act under or execute the same, sec. 23 of the Act of June 14, 1836, P. L. 628, provides that the court, shall appoint an assignee in his place.
    Where two copartners in a brokerage business make a voluntary assigriment as individuals and copartners for the benefit of their creditors, the title to a seat owned by them in a .stock exchange passes to the assignee, and a receiver subsequently appointed in an equity suit by a creditor against the partnership, can take no interest whatever in the .seat; and this is the case although the assignee named in the deed of assignment and a person appointed in his stead by the court, both refuse to accept the trust. In such a case the trust will not fail for want of a trustee.
    Argued Oct. 29, 1907.
    Appeal, No. 58, Oct. T., 1907, by plaintiff, from decree of C. P. No. 1, Allegheny Co., Sept. T., 1906, No. 435, sustaining demurrer to bill in equity in case of Marshall McClain, Receiver of E. D. Gartner and A. J. Harnack, as individuals and as copartners doing business as E. D. Gartner & Company, v. The Pittsburg Stock Exchange.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for an injunction.
    Before Over, J., specially presiding.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was decree sustaining the demurrer.

      H. S. Lydick, with him D. F. Patterson, for appellant.
    Whilst we have found no case in this' state wherein the court has appointed a receiver where there was a valid prior assignment, we find numerous cases in the courts of other states, and in the federal courts, where that has been done: McFerran v. Davis, 70 Ga. 661; Haggarty v. Pittman, 1 Paige, 298; Comah v. Sedgwick, 1 Barbour, 210; Bank v. Bridgers, 114 N. C. 381 (19 S. E. Repr. 642); Goldsmith v. Fletcheimer, 16 Ky. L. R. 433 (28 S. W. Repr. 21); Walker v. Stone, 70 Iowa, 103 (30 N. W. Repr. 39); Belmont Nail Co. v. Columbia Iron & Steel Co., 46 Fed. Repr. 8.
    If the authority of the court to appoint the plaintiff receiver should-be held doubtful, we contend that the regularity and validity of his appointment cannot be attacked in this proceeding; but only in the proceeding in which his appointment was made: Ross v. Dewey, 215 Pa. 526; Backenstoe v. Kline, 31 Pa. Superior Ct. 268.

      Henry A. Miller, for appellee.
    The deed of assignment passed title to the assignee: Heckman v. Messinger, 49 Pa. 465; Lewis v. Barry, 72 Pa. 18; Marks’ App., 85 Pa. 231; Read v. Robinson, 6 W. & S. 329; Blight v. Schenck, 10 Pa. 285; Fox v. Curtis, 176 Pa. 52.
    January 6, 1908:
   Opinion by

Mr. Justice Mestrezat,

E. D. Gartner and A. J. Harnack were copartners in the brokerage business, under the firm name of E. D. Gartner and Company, and having failed they made a voluntary assignment as individuals and copartners for the benefit of their creditors on January 23, 1906. The deed of assignment was duly recorded in the recorder’s office of Allegheny county. The assignee named in the deed declined to accept the trust. A successor was appointed by the court of common pleas, and he subsequently declined and was dismissed by the court. A bill in equity was filed by a creditor against the partnership and on May 10, 1906, Marshall McClain, appellant, was appointed receiver of Gartner and Harnack as individuals and as copartners doing business as E. D. Gartner and Company. Gartner was a member of the Pittsburg Stock Exchange, the appellee, and his seat was sold by the committee on membership for $5,000. The appellant filed this bill and therein prayed the court to enjoin the appellee, its officers and committees, from paying out the funds received from the sale of the seat in the Stock Exchange; that it be restrained from passing upon the validity of the claims against said fund ; and that it be directed to pay into court the money realized from the sale of the seat, to be disposed of as the court might direct.

The defendant, the appellee, demurred to the bill, and the demurrer was sustained by the court below.

The mere statement of the facts which are averred in the bill, as above stated, shows that the learned trial judge was right in sustaining the demurrer and in dismissing the bill. The assignment made by Gartner and Harnack as individuals for the benefit of their creditors passed the title to their individual properties to the assignee, and thereafter neither of them had any right to or control over the property or any part of it until it was reconveyed, as provided by the Act of May 4, 1864, P. L. 762, 2 Purd. (13th ed.) 1905. The property thereafter could not be diverted from the uses of the trust and, as said by Mr. Justice Strong in Robb’s Appeal, 41 Pa. 45 (p. 48): A court of equity would have laid hold of it, wherever it could be found, so long as it had an ear mark, and would have inforced its application for the benefit of the creditors in whose behalf the assignment was made.” A deed of assignment for the benefit of creditors, duly recorded, vests in the assignee the title of the assignor independent of the fact whether the assignee accepts or declines the trust. No trust will be permitted to fail or become noneffective by reason of the failure of the trustee to accept and perform the duties imposed by the trust. The deed of assignment conveys the property and creates the trust, and thereafter it is not in the power of the assignor or the assignee to defeat the trust. If the assignee renounces the trust, or refuses to act under or execute the same, section 23 of the Act of June 14, 1836, P. L. 628, provides that the court having jurisdiction shall appoint an assignee in his place. So it will be observed that under the assignment made by Gartner the title to all of his individual property, including his seat as a member of the Pittsburg Stock Exchange, passed from him to an assignee for the benefit of his creditors. Thereafter Gartner’s creditors were the beneficiaries of the property which could only be administered in their interest and under the deed of assignment. "When the two successive assignees declined the trust, the proper and only action that could be taken to have the property administered was to have an assignee appointed by the court. Any creditor or party interested in Gartner’s estate, or any part of it included in the assignment, was a proper party to make application to the court for the appointment of an assignee. In this way and by this means, any creditor could have enforced his rights to the proceeds of the assignor’s property.

From what has been said it will appear that the court had no authority to appoint a receiver for Gartner’s property included in the deed of assignment. All the interest and estate he had in the property passed by the deed to the assignee, and therefore, there was nothing for a receiver to take into his possession and to administer. An appointment of a receiver could, under the circumstances, vest no title to the property in him, or authorize him to take and hold it against an assignee duly appointed by a court of competent jurisdiction.

Fox v. Curtis, 176 Pa. 52, gives no support whatever to the appellant’s position in this case. In that case, each of the partners assigned the property on different dates to different assignees. There was no assignment by the partnership, and it was held in accordance with the decision in Sloan v. Moore, 37 Pa. 217, that one partner could not make a valid assignment of the partnership property; and that, under the peculiar circumstances of the case, the appointment of a receiver was the only adequate remedy by which the interests of all parties concerned in the partnership property could be preserved. In the case at bar, the two partners did not assign separately the partnership property, nor is it claimed that the assignment by Gartner of his seat in the Stock Exchange is invalid and did not pass the title to the assignee. On the contrary, it must be conceded that Gartner’s title to membership in the Stock Exchange passed by the assignment and was legally vested in the assignee. On the facts, therefore, of the case in hand, Fox v. Curtis, 176 Pa. 52, sustains the position of the appellee and therein it is said that “ if the assignment can be sustained as a general assignment the property assigned was vested in the trustee, and could not be taken from his control and placed in the hands of a receiver.”

The decree of the court below is affirmed.


text:
    E. D. Gartner & Company’s Assignment.
    Argued Oct. 29, 1907.
    Appeal, No. 59, Oct. T., 1907, by Marshall McClain, Receiver, from decree of C. P. No. 1, Allegheny Co., March T., 1906, No. 522, appointing Guarantee Trust & Title Company assignee of E. D. Gartner & Co., and directing the receiver to turn over assets to the substituted trustee in the matter of the voluntary assignment of E. D. Gartner & Company for the benefit of creditors.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    January 6, 1908:
   Opinion by

Mr. Justice Mestrezat,

The affirmance of the decree in Marshall McClain, Receiver, v. The Pittsburg Stock Exchange, ante, p. 435, necessarily sustains the order made in this case, and therefore this appeal is dismissed at the cost of the appellant.


text:
    Williams v. Gartner & Company.
    Argued Oct. 29, 1907.
    Appeal, No. 89, Oct. T., 1907, by Marshall McClain, Receiver, from decree of C. P. No. 1, Allegheny Co., June Term, 1906, No. 688, directing receiver to turn over assets to the Guarantee Title & Trust Company, assignee of E. D. Gartner & Company, in case of D. W. Williams et al. v. E. D. Gartner & Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    January 6, 1908:
   Opinion by

Mr. Justice Mestrezat,

The affirmance of the decree in Marshall McClain, Receiver, v. The Pittsburg Stock Exchange, ante, p. 435, necessarily sustains the decree made in this case, and therefore this appeal is dismissed at the cost of the appellant.


author: Mr. Justice Potter,

text:
    Carroll’s Estate.

      Adoption — Parent and child — Parol adoption — Contract—Married woman.

    The only methods of adoption of children known to the law of Pennsylvania, are those prescribed by the Act of May 4, 1855, P. L. 430, sec. 7, as re-enacted by the Act of May 19, 1887, P. L. 125, sec. 1, and the Act of April 2, 1872, P. L. 31, sec. 2. The former provides for adoption by petition to, and decree of, the court of common pleas; and the latter for adoption by deed duly executed and recorded. There is no such thing as a parol adoption.
    Where a husband adopts a child by proceedings in the court of common pleas, but the wife is in no way a party to the proceedings, the child does not became an adopted child of the wife, so as to inherit the wife’s estate.
    The measure of damages for a breach of contract to adopt is the value of the services performed, or outlay incurred on the strength of the promise.
    Where a husband adopts a child by proceedings to which his wife was not a party, services rendered in the household by the adopted child will be presumed to be on account of the adopted father, and not for the wife.
    In 1865 a married woman, living with her husband, had no power to enter into a contract to adopt.
    The right to take property by devise or descent is the creation of the law, and not a natural right. The legal act of adoption carrying with it the right to inherit, is purely statutory, and the statute must, in cases where its provisions are applied, be strictly followed.
    Mitchell, C. J., dissents.
    Argued Oct. 29, 1907.
    Appeal, No. 71, Oct. T., 1907, by Sinah Jaquay, from decree of O. C. Allegheny Co., June T., 1906, No. 95, sustaining exceptions to adjudication in Estate of Martha J. Carroll, deceased.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Exceptions to adjudication.
    The facts arc stated in the opinion of the Supreme Court.

      Error assigned was decree sustaining exceptions to adjudication.

      Thomas M. Benner, for appellant.
    The alleged contract was insufficiently proven: Graham v. Graham’s Executors, 34 Pa. 475; Pollock v. Ray, 85 Pa. 428; Wall’s Appeal, 111 Pa. 460.
    There was no legal adoption: Ballard v. Ward, 89 Pa. 358; Brown’s Adoption, 25 Pa. Superior Ct. 259; Morrison v. Sessions’s Estate, 70 Mich. 297 (38 N. W. Repr. 249); Foley v. Foley, 61 Ill. App. 577; Thorne’s Case, 155 N. Y. 140 (49 N. E. Repr. 661).
    It is a certain fact that the consensus of opinion of the courts, as shown by ah the cases, is that an adoption except in a way provided by statute is unenforcible both in law and equity: Long v. Hewitt, 44 Iowa, 363; Sarazin v. R. R. Co., 153 Mo. 479 (55 S. W. Repr. 92); Renton’s Estate, 10 Washington, 533 (39 Pac. Repr. 145); Tyler v. Reynolds, 53 Iowa, 146; Shearer v. Weaver, 56 Iowa, 578; Vandermis v. Gilbert, 10 Pa. Superior Ct. 570; Watts v. Dull, 184 Ill. 86 (56 N. E. Repr. 303).
    The contract was made by incompetent parties: Moore V. Cornell, 68 Pa. 320; Pettit v. Fretz’s Executor, 33 Pa. 118; Shonk v. Brown, 61 Pa. 320; Berger v. Clark, 79 Pa. 340; Hinkle v. Landis, 131 Pa. 573; Mahon v. Gormley, 24 Pa. 80.
    The contract being utterly void for want of authority in Mrs. Carroll to make it, it cannot be ratified: Nesbitt v. Turner, 155 Pa. 429; Kingan’s Estate, 49 P. L. J. 219.
    Ho damages can be recovered for breach of the alleged contract: Graham v. Graham’s Executors, 34 Pa. 475; Kauss v. Rohner, 172 Pa. 481; Sandham v. Grounds, 94 Fed. Repr. 83; Wall’s Appeal, 111 Pa. 460; Thompson v. Stevens, 71 Pa. 161; Miller’s Estate, 136 Pa. 239; Carpenter v. Hays, 153 Pa. 432; Pollock v. Ray, 85 Pa. 428; Van Dyne v. Vreeland, 11 N. J. Eq. 370; Wright v. Wright, 99 Mich. 170 (58 N. W. Repr. 54); Sharkey v. McDermott, 91 Mo. 647.

      John P. Hunter, of Lyon, Hunter & Burke, for appellee.
    Independent of the act of 1855 a valid contract could be made by which a person could adopt a person as a child in consideration of that. child taking as an heir upon the death of the party thereto. Adoption is a contractual relation, and the act of 1855 specifies a method in which that contract can be evidenced, but such method is not the only evidence thereof: Susman’s Estate, 45 P. L. J. 101; Van Dyne v. Vreeland, 11 N. J. Eq. 370; Schutt v. Missionary Society, 41 N. J. Eq. 115 (3 Atl. Repr. 398); Nowack v. Berger, 133 Mo. 24 (34 S. W. Repr. 489); Gates v. Gates, 34 App. Div. 608 (54 N. Y. Supp. 454); Godine v. Kidd, 64 Hun, 585 (19 N. Y. Supp. 335); Heath v. Heath, 18 Misc. 521 (42 N. Y. Supp. 1087); Winne v. Winne, 166 N. Y. 263 (59 N. E. Repr. 832); Durkee v. Durkee, 59 Vt. 70 (8 Atl. Repr. 490); Wright v. Wright, 99 Mich. 170 (58 N. W. Repr. 54); Jaffee v. Jacobson, 48 Fed. Repr. 21.
    Even if what we suggest is not true, in any event we submit that this is a good contract in the nature of a covenant by Mrs. Carroll, to stand seized to the use of Mrs. Hemmick, as one of her heirs, and as she, by the agreement was adopted as a child, and Mrs. Carroll had no other children, she was entitled to all the estate as an heir: Taylor v. Mitchell, 87 Pa. 518; Carson v. Cemetery Co., 104 Pa. 575; Dutton v. Pool, T. Raym. 302; Hoff’s Appeal, 24 Pa. 200; Merriman v. Moore, 90 Pa. 78.
    Since the act of 1855 the contract is valid as a contract of adoption, and the method of procedure pointed out by that act is not exclusive, but is simply one of the methods of evidencing such adoption: Peterson’s Estate, 212 Pa. 453; Forest’s Application, 2 Chester Co. Rep. 232; Wallace’s Estate, 218 Pa. 39.
    It must be borne in mind that Mrs. Carroll is not repudiating this contract or questioning its validity. She never did that, and the authorities are numerous that a married woman alone can avoid her contract, but the other party thereto is bound, and that after her coverture she can affirm the validity of the contract, and thereby be bound: Holden v. Banes, 140 Pa. 63; Brown v. Bennett, 75 Pa. 420; Towers v. Hagner, 3 Whart. 48; Dando’s Appeal, 94 Pa. 76; Hinney v. Phillips, 50 Pa. 382; Leiper’s Appeal, 108 Pa. 377; Brooks v. Bank, 23 W. N. C. 502; Brown v. Bennett, 75 Pa. 420; Ramborger’s Admr. v. Ingraham, 38 Pa. 146; Glass v. Warwick, 40 Pa. 140; Snyder v. Noble, 94 Pa. 286.
    This is not an action for damages for breach of contract, but, treating it as an action and a contract, it is for the consideration of an executed contract by the one who has had full performance.
    January 6, 1908:
   Opinion by

Mr. Justice Potter,

This case was presented to the orphans’ court as resting upon two grounds. First, that claimant was the adopted child of the decedent, Martha J. Carroll; and, second, that if she was not an adopted child there had been a contract with decedent for her adoption, under which claimant was entitled to recover the proportion, of the estate which would have gone to her had she been duly and regularly adopted. The auditing judge found that while under regular proceedings; in accordance with the statute, in the court of common pleas, the claimant had been adopted by D. W. O. Carroll as his' child, yet his wife, Martha J. Carroll, was not in any way a party to those proceedings, and that claimant therefore acquired no rights as a child or heir of the wife. It appeared from the evidence that claimant was not legally adopted, even by the husband, until some five years after she had become an inmate of his'household; and the auditing judge was of the opinion that the presumption was that the terms of any parol agreement which may have been- made between Mrs. Carroll and-the mother of claimant with regard to an adoption of the child, were fulfilled in the proceedings which were taken by the husband, and that it was accepted in full performance thereof. He was also controlled, in reaching his conclusions, by the fact that if any contract was made between Mrs. Carroll and the mother of claimant it was invalid, because the father of claimant was not a party to it, and because Mrs. Carroll, being a married ■ woman, was at that time incompetent to so contract. There was no evidence of any services rendered by the claimant to Mrs. Carroll, and, therefore, no recovery could be had upon that ground. The auditing judge therefore dismissed ' the claim and awarded the. estate to the collateral kindred of Mrs. Carroll. Upon exceptions to his decree it was over-, ruled, and the court in banc entered a new decree awarding the estate to. the. claimant, Mrs. Hemmick, upon the ground' that there was, in the opinion of the majority, of the court, sufficient evidence to support the conclusion that a parol contract of adoption had been made by Mrs. Carroll, and that if ' the claimant was not adopted by the wife as well as by the husband, she ought to have been, and that it was the intention of Mrs. Carroll that she should be.

The only methods of adoption of children known to the law of Pennsylvania, are those prescribed by the Act of May 4, 1855, P. L. 430, sec. 7, as re-enacted by the Act of May 19, 1887, P. L. 125, sec. 1, and the Act of April 2, 1872, P. L. 31, sec. 2. The former provides for adoption by petition to, and decree of, the court of common pleas; and the latter for adoption by deed duly executed and recorded. While the act of 1872 refers to “ the common-law form of adopting a child by deed,” yet the authorities are uniform to the effect that adoption was unknown to the common law, whether by deed or otherwise: Ballard v. Ward, 89 Pa. 358; McCully’s Appeal, 10 W. N. C. 80; Session’s Estate, 70 Mich. 297; Butterfield v. Sawyer, 187 Ill. 598. We know of no authority for the proposition that, in the state of Pennsylvania, a child may bo adopted by parol. The doctrine of Peterson’s Estate, 212 Pa. 453, does not justify any such conclusion. In that case, the adoption was not in parol, nor was there any effort to show that it was ; it was under the petition of both the husband and wife, and the decree of the court. It is definitely pointed out in the opinion, that the petition was the act of both husband and wife, and that both had signed it before the court passed upon it. The question there, was whether or not the wife was actually a party to the proceedings in adoption, and it was held that she was. That her act in signing the petition which had been drawn for the husband alone, and afterwards used for both husband and wife without making all the proper verbal changes, raised the presumption that she intended to make herself a party to it, and that this presumption was reinforced by the prayer that the adopted child shall have “ all the rights of a child and heir of the petitioners,” putting it distinctly in the plural. It is clearly to be implied from the opinion in Peterson’s Estate, that if the wife had not been in any way a party to the petition or to the statutory proceedings, there would have been no adoption by her. There is no pretense in the present case that the wife was in any way a party to the proceedings, or that she made any attempt to adopt by deed. As there could be no adoption in any other way, the claim of Mrs. ITemmick, to inherit as a child of Mrs. Carroll, has no basis on which to rest.

As to the right to recover damages for a breach of contract to adopt, the measure of such damages is correctly stated by the auditing judge, as being the value of the services performed, or outlay incurred on the strength of the promise: Kauss v. Rohner, 172 Pa. 481; Pollock v. Ray, 85 Pa. 428; Graham v. Graham’s Exrs., 34 Pa. 475. In the present case there was no evidence of services rendered by the claimant to decedent. Whatever services were shown to have been rendered by her were in the lifetime of decedent’s husband, the father by adoption, and while she was an inmate of his household, or when she came from her own home to nurse him in his last illness. For these services the decedent was not responsible. It appears, too, that decedent lived only nine months after her husband’s death, and there is no evidence of any services rendered, to her by the claimant, during that time. Claimant was married in 1881, and then left the home of her adopted father, and it does not appear that she rendered any service in his house after that time, except when she returned at various times for the express purpose of nursing him. Even had she rendered other household services, the presumption would, of course, be that they were on account of her adopted father, and not for the wife.

The alleged parol contract was said to have been made about the year 1865, and at a time when Mrs. Carroll was married and living with her husband. She could make no lawful or binding contract of this nature at that time. Nor do we see any evidence sufficient to constitute ratification. The declarations relied upon for that purpose are all consistent with her recognition of claimant as the adopted child of her husband. So is her treatment of claimant as a child, and the children of claimant as the grandchildren of decedent. The personal attitude of the inmates of a family towards an adopted child, as regards the family relation, is a matter entirely for the parties. But the matter of inheritance is entirely under the regulation of the law. The right to take property by devise or descent is the creation of the law, and not a natural right. The legal act of adoption carrying with it the right to inherit, is purely statutory, and the statute must, in cases where its provisions are applied, be strictly followed.

We are satisfied’ that the conclusions of the auditing judge were correct, and that Mrs. Hemmick has no claim upon the estate of Mrs. Carroll.

The decree of the orphans’ court is reversed and it is now considered and adjudged that the decree of the auditing judge be affirmed.

Mitchell, C. J., dissents.


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    Lilley, Appellant, v. Pennsylvania Railroad Company.

      Railroads — Condemnation proceedings — Expert witnesses — QualifLcartions — Evidence.
    Witnesses in railroad condemnation proceedings are not qualified as experts to express an opinion as to market value, where they state that they have no knowledge of the value of lands in the neighborhood based on sales, but only a knowledge of the value of coal leases, and a knowledge of royalties paid to the lessors of coal.

      Railroads — ■Condemnation proceedings — Farm crossings — Abolition of farm crossings.

    Where a railroad company condemns additional land along its right of way, and fails to extend farm crossings previously maintained, over the additional track to be laid on the newly condemned land, the jury may consider the loss of these crossings as a proper element of damage in making up their verdict.
    Argued Oct. 30, 1907.
    Appeal, No. 200, Oct. T., 1907, by defendant, from judgment of C. P. Washington Co., Feb. T., 1890, No. 216, on verdict for plaintiff in case of Thomas Lilley, Executor, v. Pennsylvania Railroad Company, Successor to the Pittsburg, Virginia & Charleston Railway Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Issue to determine the value of land condemned by defendant.
    Before McIlvaine, P. J.
    The opinion of the Supreme Court states the case.
    The court under objection and exception rejected the witnesses Flint and Graham to whom reference was made in the opinion of the Supreme Court. [1, 2]
    The court permitted the witness, Birmingham, to testify under objection and exception. [3]
    The court charged in part as follows :
    [When the defendant company constructed its first track it entered into an agreement with Thomas Lilley, Sr., in the settlement of his claim for damages done his farm, and in that agreement the railroad contracted to construct and maintain and it did construct and maintain across said track five farm crossings, so that he could pass from the main part of the farm to the part - cut .off by the railroad lying next the river. In taking this additional 100 feet along the river side of the old track in 1889 the defendant company made no provision for extending these five farm crossings over the additional track to be laid upon it, thus virtually destroying the five crossings. How, gentlemen, in your deliberations you must take it as one of the facts of this case that the defendant company had the right under its charter and the laws 'of this commonwealth to take this additional strip of Thomas Tilley’s land and these farm crossings, and the company is not in any sense to be considered by you as a trespasser or as a wrongdoer to be mulcted in damages for a wrong which it has done to Thomas Lilley, Sr. The law gives the railroad company this additional land and these crossings, on one condition, however, and that is that Thomas Lilley, Sr., or his legal representatives, be fully and fairly compensated in dollars and cents for the land taken, injured or destroyed, and the undisputed right of the plaintiff in this case, therefore, is to receive at your hands such a verdict as will give him in dollars and cents this fair and just compensation.] [4]
    [One. of the. acts of assembly to which I referred a few moments ago, in one of its sections provides that a railroad company in building a road across a farm, for the accommodation of the persons owning or possessing the land through which the railroad may pass, shall be in duty bound to make or cause to be made, a good and sufficient causeway, whenever the same may be necessary to enable the occupant or occupants of the surface of said land to cross or pass over the same, with wagons, carts and implements of husbandry, as occasion may require; and said causeway or causeways, when so made, shall be maintained and kept in good repair by the railroad company. How, in this case, the railroad company had a right in condemning this strip 100 feet wide and 5,000 feet long — to destroy, if necessary, these five crossings that had been made under the agreement with- Thomas Lilley, Sr. Thomas Lilley, Sr., had a property right in those five crossings, but it was only as they were appurtenant to the land, and the same power that the railroad had (this right of eminent domain) to condemn the additional land also gave it the right to condemn these five crossings which were appurtenances to the land; I say it had a right to do that; but after it made this additional appropriation Mr. Lilley would be entitled to the farm crossing that the act of assembly gives him, and we instruct you that is the law in this case as tried. So in estimating any damages that the farm as a whole has sustained by reason of the access from the main body thereof to this thirty-five acres which is next the river being cut off, if this caused any depreciation — why you will recollect that he will have one farm crossing, but not five.) [5]
    Yerdict and judgment for plaintiff for $30,000. Plaintiff appealed.

      Errors assigned were (1, 3) rulings on evidence, quoting the bill of exceptions ; (4, 5) above instructions, quoting them; and (6) that the charge of the court was insufficient as to damages for the destruction of the five crossings.

      Wm. B. Rodgers, with him J. W. Kraus, W. S. Parker, Winfield McIlvaine and Norman E. Clark, for appellant,
    cited: Lally v. R. R. Co., 215 Pa. 436.

      R. W. Irwin, with him James A. Wiley and A. T. Morgan, for appellee,
    cited: Schuykill River, etc., R. R. Co. v. Stocker, 128 Pa. 233; Friday v. Penna. R. R. Co., 204 Pa. 405.
    January 6, 1908:
   Opinion by

Mr. Justice Stewart,

This was a proceeding to determine the damages plaintiff was entitled to, in consequence of the appropriation by the defendant company of certain land in the widening and improving of its roadbed, under the provisions of the act of March 11, 1869. The testimony of two of the witnesses called by plaintiff to show the value of the farm at the time of the appropriation, was rejected, on the ground that they had not qualified themselves upon examination to express an opinion on the subject. The first of these witnesses, Flint, when asked if he knew the values of property in this particular vicinity at the time inquired of, 1889, replied, “ Nothing, only coal properties as to the value of leases.” When asked if from his “knowledge of sales and other'information he had,” he was able to tell about what this property ivas worth, his reply was “ I could give an estimate, I think.” If the estimate he was prepared to give ivas based on his general knowledge of sales of land in that neighborhood, it would doubtless have been received, since such knowledge ordinarily qualifies a witness to testify in such an inquiry as this ; but .the witness had expressly said that he knew nothing of the value of land in the neighborhood, and had known of but one sale, a coal property, which was on the other side of the river. A very reasonable conclusion from this would be, that the estimate he Avas prepared to give was based on the other information he had, the nature ■ and character of which was Avholly undisclosed. The other witness, Graham, had been interrogated fully as to the value of the harbor on the river front of plaintiff’s land for opening and developing a coal property. The estimate he was prepared to give evidently included the value of the land as a coal property, and yet he admitted that all the knowledge of coal value he had was in connection with royalties paid to the owner. That the coal deposit affected the value of plaintiff’s land was beyond question; but one whose knowledge on the subject Avas limited to royalties paid for the privilege of mining coal, could hardly be qualified to speak intelligently as to the market value of the land carrying the coal; yet speaking from this data and this alone, he said he thought he was able to fix’ “ a value upon a sale, as if sold out and out.” The court did not think this qualified the witness to express an opinion as to the market value of the property, nor do we. No error was committed in rejecting the testimony of these Avitnesses. In reply to plaintiff on this branch of the case, defendant called a witness, Birmingham, who Avas allowed to express an opinion as to the value of the land over objection made by the plaintiff. This witness on his preliminary examination said unqualifiedly that he Avas familiar with the market values of land in this particular neighborhood at the time of the appropriation and prior thereto. If he Avas, this qualified him to express an opinion, the value of the opinion depending largely upon the extent of this knowledge. While the cross-examination of the witness went far towards reducing the value of his opinion, it did not make his incompetency so apparent that we could feel justified in holding the admission of his testimony error. It was a question resting largely in the discretion of the court, and was, we think, properly decided. The first and second assignments of error are overruled.

Thomas Lilley, who owned this farm at the time the railroad was located thereon, granted to the railroad company a right of way over it. By the terms of the agreement the railroad company covenanted to construct and maintain, and did construct and maintain, across the track of their road for the convenience and accommodation of the grantor five farm crossings. In 1899, when the appropriation was made for which damages are now claimed by the executor of the grantor, the five crossings were still being maintained. How far they were interfered with by the appropriation we have no means of knowing, except as the matter is referred to in the charge of the court. The court charged as follows: “ In taking this additional 100 feet along the riverside of the old track in 1889, the defendant company made no provision for extending these five farm crossings over the additional track to be laid upon it, thus virtually destroying the five crossings.” The jury was instructed that the loss of these crossings was a proper element of damage to be considered in making up the verdict. It is insisted upon by plaintiff’s counsel, in assignments four and five, that the matter of the crossings was not involved in the case under the pleadings, and that the court erred in introducing it into the case. That it was a proper subject for consideration under the pleadings is beyond question. Under the issue the jury was to determine what amount would compensate the plaintiff for his loss sustained by reason of the appropriation of his land, measured by the ordinary standard of depreciation in market value, taken as a whole. The fact, if it were a fact, that the means of access from one part of the farm to the other were reduced from five crossings to one, would obviously have some effect upon the market value of the property. IIoav the pleadings could exclude this particular element of damage from the consideration of the jury is not explained. Whether the court erred in making reference to it in the charge, depends entirely upon whether there was any evidence in the-case'warranting such reference. To determine certainly this question would require a closer examination of the 388 pages of testimony than we have been able to make. Such examination as we have made, inclines us to the view that the court must have derived its knowledge with respect to the crossings from the remarks of counsel, and not from the evidence; but be this as it may, whether properly or improperly submitted to the jury for their consideration, the effect of such submission could not have been to reduce the verdict for plain-tiff below what it otherwise would have been. If it had effect at all, it must have been to enlarge, and not diminish. Therefore, being without prejudice in this regard, plaintiff is in no position to complain. What may be the effect in connection with another proceeding still pending in the court below, in which the railroad company is seeking to condemn land of the plaintiff on the other side of its tracks, including the five farm crossings, is a matter that does not concern us in the present inquiry. It is further objected that if the crossings were involved in the case, the charge of the court with respect to them was inadequate. For reasons made obvious by the reference above, we refrain from any discussion of this objection, and simply express our conclusion that the charge was entirely adequate. The assignments of error are overruled.

Judgment affirmed.


text:
    Lilley v. Pennsylvania Railroad Company, Appellant.
    Argued Oct. 30, 1907.
    Appeal, No. 162, Oct. T., 1907, by defendant, from judgment of C. P. Washington Co., Feb. T., 1890, No. 216, on verdict for plaintiff in case of Thomas Lilley, Executor, v. Pennsylvania Railroad Company, successors to the Pittsburg, Virginia & Charleston Railway Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Appeal dismissed.

      January 6, 1908:
   Opinion by

Mr. Justice Stewart,

This is an appeal by the defendant from the same judgment that was considered in the case just decided, ante, p. 447. By agreement of counsel the appeal is dismissed at appellant’s costs.


text:
    Von Moss’s Election.

      Election law — Certiorari—Appeals—Scope of the review — Nomination certificates.

    Contested elections are regulated entirely by statute. The statute declares what court shall have jurisdiction and directs the course of procedure in such contests. Unless an appeal is given by statute to the party aggrieved by such proceedings, no appeal lies to an appellate court by which the merits of the case can be reviewed.
    Where the proceedings in an election contest have been brought into the appellate court by certiorari, the inquiry of that court extends to a mere inspection of the record to determine whether the lower court had exceeded its powers, or had grossly abused the discretion conferred by the statute. The appellate court cannot go further and inquire whether the judgment of the court below on the whole case was correct.
    The jurisdiction to determine questions as to the form and validity of nomination certificates is exclusively in the court of common pleas by objections filed to the certificate, and not in the court of quarter sessions. The latter court in an election contest cannot consider such questions; and where the proceedings in the contest are carried into the Supreme Court by certiorari, the Supreme Court cannot consider them.
    Argued Oct. 30, 1907.
    Appeal, No. 72, Oct. T., 1907, by Charles Von Moss, from order of Q. S. Allegheny Co., Dec. Term, 1905, No. 79, issuing a certificate of election to George Wolff in the matter of the Election Contest of Charles Von Moss.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Petition in an election contest.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was the order of the court.

      Harvey Henderson, with, him Trimble & Chalfant and John H. Henderson, for appellant,
    cited as to the jurisdiction of the Supreme Court: Chester County Republican Nominations, 213 Pa. 64.

      John Marron, of Marron & McGirr, for appellee.
    In certiorari the merits cannot be reviewed; they belong exclusively to the court below: Election Cases, 65 Pa. 20; Robb’s Nomination, 188 Pa. 212; Independence Party Nomination, 208 Pa. 108.
    The courts have no power to pass on the validity of nomination certificates or papers, unless objections have been filed under nomination acts: Van Storch’s Nomination, 12 Pa. C. C. Rep. 253; Jobes’s Nomination, 12 Pa. C. C. Rep. 253; Commonwealth v. Martin, 6 Dauph. County Rep. 248; Thomas’s Nomination, 6 Dauph. County Rep. 245.
    January 6, 1908:
   Opinion by

Mr. Justice Mestrezat,

At an election held in the eighth ward, Allegheny, in Allegheny county, on February 21, 1906, Charles Von Moss was returned as elected to the office of alderman and justice of the peace for said ward. A petition was presented to the court of quarter sessions of Allegheny county by thirty qualified electors of said ward, contesting- the election of Von Moss. To this petition an answer was filed, and an examiner was appointed with instructions to open the ballot box and count the ballots and make a report to the court. The examiner having performed his duties and made his report, the court after due consideration found that George Wolff had received a majority of the legal votes polled at said election for the office of alderman and justice of the peace of the ward, and declared him regularly and lawfully elected to the office. Von Moss has brought the record into this court for review on a certiorari.

Contested elections are regulated entirely by statute. The statute declares what court shall have jurisdiction, and directs the course of procedure in such contests. Unless an appeal is given by statute to the party aggrieved by such proceedings, no appeal lies to an appellate court by which the merits of the case can be reviewed. In the case in hand, the aggrieved party has taken a certiorari, and that brings simply the record into this court. Our inquiry, therefore, is circumscribed, “ it extends to a mere inspection of the record to determine whether the lower court has exceeded its powers, or has grossly abused the discretion conferred by the statute. . . . We cannot go further and inquire whether the judgment of the court below on the whole case was correct, for that would be treating the certiorari as an appeal, without any authority, common law or statutory, so to do:” Robb’s Nomination Certificate, 188 Pa. 212.

An examination of the record in this case shows that the court below had jurisdiction, and that the proceedings were regular and according to the statutory requirements. Jurisdiction is conferred on the court of quarter sessions to hear and determine contests of election for aldermen and justices of the peace. Under the facts presented in this case, as clearly shown by Judge Young’s opinion, it became necessary to open the ballot box and have the votes recounted, the court very properly saying: “This case turns upon the correct count of the ballots cast, and there is only one way to get a correct count and that is by recounting the ballots.” The court found, on the recount of the ballots, that Wolff had a majority of two votes cast for alderman and justice of the peace of the ward, and awarded a certificate of election to him.

It appears from the history of the case that Wolff and Yon Moss both filed with the county commissioners certificates of nomination as candidates of the democratic party for the office of alderman in the eighth ward. Exceptions were filed to the Yon Moss certificate prior to the election, but were not disposed of by the court because they were not filed within the time required by the statute. The commissioners printed Wolff’s name upon the ballots as the nominee of the democratic party. There were thirteen straight democratic ballots and eleven split democratic ballots which were counted for Wolff, and which the appellant claims should have been counted for him because he had filed with the commissioners his certificate of nomination as the candidate of the democratic party. The appellant’s first assignment alleges error in counting these votes for Wolff. It will be observed that it is not claimed that the thirteen straight ballots and eleven split ballots were not cast for Wolff, but the allegation is that Wolff’s name should not have been placed on the ballots as the democratic nominee, and that Yon Moss’s name should have been placed on the ballots as the democratic nominee, and therefore those votes should have been counted for Yon Moss.

On this writ of certiorai’i we cannot inquire into the question raised by this assignment, and determine whose name was entitled to be placed on the ballot as the candidate of the democratic party for alderman in that ward. That question cannot arise upon this record, and hence we cannot consider it. The jurisdiction to determine questions as to the form and validity of nomination certificates is exclusively in the court of common pleas by objections filed to the certificates, and not in the court of quarter sessions, whose record we now have before us for review. Each candidate had an opportunity to have the legality of the other’s nomination certificate tested in the common pleas before the election. The statute makes express provision for a proceeding for such purpose, and either party could have gone into the common pleas and bad the legality of the other’s certificate determined, thereby giving the democratic electors a candidate to vote for. It seems that this was attempted by one of the parties, but the provisions of the statute not having been complied with the objections to the certificate were not pressed. If the appellant here is injured by his failure to have his opponent’s certificate declared illegal in the manner pointed out by the statute, he must assume the responsibility, and is not in a position to ask another court, and one without jurisdiction, to hear his complaint, and later to insist upon an appellate court, equally without jurisdiction, to remedy his alleged ills.

The petition filed by the contestants in this case does not raise the question of the validity of the certificates filed by the candidates, but avers that George Wolff was legally elected to the -office of alderman by a majority of the votes cast in the ward, but “by reason of improper influences the said (election) boards improperly and fraudulently changed said return in the first election district of said ward and certified a return showing a majority of one vote for Charles Von Moss.” The answer of Yon Moss, the appellant, raises the question as to "Wolff’s name being properly on the ballot as the democratic candidate. It is clear, however, that the court below could not hear and determine the question, or, if it did hear and determine the question, we cannot review the conclusion of the court on this certiorari.

Without further discussing the subject it is sufficient to say that we find that the court below had jurisdiction of this election contest, and that all of its proceedings, so far as disclosed by the record, are regular and within the statutory requirements. It therefore follows that the order of the court must be affirmed.