text:
    Commonwealth ex rel. v. City Trust Safe Deposit and Surety Company.

      Principal and surety — Bond—Federal building contract — Voluntary payments.

    Where a surety on a bond given in pursuance of the act of congress to secure “payment to all persons supplying labor and materials” to a contractor in the erection of a public building, voluntarily pays a judgment obtained against it by a material man, and also an uncontested account, and subsequently another subcontractor establishes a claim which together with the amounts paid exceeds the penal sum of the bond, the surety will not be liable to such subcontractor merely for the difference between the amounts previously paid to other creditors and the penal sum, but its liability will be determined by ascertaining the per centum the creditors would be entitled to on an equal distribution among all, even if the result is a payment by the surety of an aggregate in excess of the penal sum of the bond. In such a case the surety company could have protected itself by restraining execution on the judgment, and by refusing to pay the uncontested claims, until the claim of the subcontractor of which the surety had knowledge, was adjusted.
    Argued Jan. 20, 1909.
    Appeal, No. 138, Jan. T., 1908, by J. Hampton Moore, receiver of City Trust Safe Deposit and Surety Company, from order of C. P. No. 5, Phila. Co., June Term, 1905, No. 2,040, dismissing exceptions to auditor's report in The Matter of the Claim of the United States of America to use of Harrisburg Trust Company, Receiver of Dauphin Bridge Company, in suit of Commonwealth of Pennsylvania ex rel. Hampton L. Carson, Attorney General, v. City Trust Safe Deposit and Surety Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Exceptions to report of John M. Scott, Esq., and Ziba T. Moore, Esq., auditors.
    The exceptions were as follows:
    First, the learned auditors erred in finding the amount due to said claimant in the sum of $4,536.59; second, in not finding the amount due said claimant as the sum of $2,849.47; third, in making award to said claimant on the basis of a claim of $4,536.58; fourth, in not making award to said claimant on the basis of a claim of $2,849.47; fifth, in not allowing against said claim full credits for judgments heretofore recovered on the bond by creditors, at the suits of the United States of America to their use, and paid by the City Trust Safe Deposit and Surety Company.
    The facts appear by the opinion of the Supreme Court.

      Error assigned was in dismissing the exceptions.

      Joseph H. Slattery, with him John Kent Kane, Staalce & Patton and Murdock Kendrick, for appellant,
    cited: United States v. Shipbuilding, etc., Co., 137 Fed. Repr. 689.

      John Douglass Brown, with him Henry Wolf Bikle and Wolfe & Bailey, for appellee,
    cited: United States v. Rundle, 100 Fed. Repr. 400; Com. v. Kean, 13 Pa. Superior Ct. 167; Com. v. Kean, 19 Pa. Superior Ct. 576; American Surety Co. v. Cement Co., 96 Fed. Repr. 25; United States v. Heaton, 128 Fed. Repr. 414; United States v. Shipbuilding, etc., Co., 137 Fed. Repr. 689; U. S. F. & G. Co. v. Struthers Wells Co., 209 U. S. 306.

      March 29, 1909:
   Opinion by

Mr. Justice Stewart,

This is an appeal from a decree of distribution of the assets in the hands of the receiver of the City Trust Safe Deposit and Surety Company of Philadelphia. The Penn Erecting Company having been awarded by the United States a contract for the erection of a public building, gave bond, as required by the act of congress, in a penal sum conditioned that it would “promptly make payment to all persons supplying labor and materials in the prosecution of the work provided for in the aforesaid contract.” The obligee named in the bond is the United States; the penal sum is $6,695, and the surety the City Trust Safe Deposit and Surety Company. The Penn Erecting Company completed the building it had contracted to erect, but in the end was largely indebted to various parties who had supplied it with the required materials. Default having been made in the payment of this indebtedness, separate suits were brought on the bond by the individual claimants, and judgment against principal and surety followed in each case, except in the suit of the Dauphin Bridge Company. While the suit of the bridge company was brought quite as promptly as the others, though in a different court, it alone was halted by a defense set up, and its suit was undetermined when the distribution, which is here appealed from, was made. The surety company without delay paid in full the judgment obtained against it, amounting to $3,625.70, and in addition paid an uncontested account of $219.83 in full, thus making its entire payment on account of its liability $3,845.53. Some time thereafter the surety company passed into the hands of a receiver, as did also the bridge company. At the audit of the account of the receiver of the surety company, the claim of the bridge company was submitted, and proved to the amount of $8,082.27, by the Harrisburg Trust Company, its receiver. Its right to participate in the distribution was not denied. Not only was there no attempt to dispute the honesty and accuracy of this claim, but it was distinctly admitted that the defense set up to the action brought by the bridge company by way of set-off, could not be sustained. The other defense to the action was that the surety company, having paid on account of its liability on the bond the sum of $3,845.53, was entitled to a credit for this sum, and in no event could be required to pay to the plaintiff anything in excess of the difference between its credits and the penal sum in the bond. And this states the whole controversy which was before the auditor, and which is renewed here by this appeal. The auditor instead of limiting the recovery to the difference between the amount previously paid by the surety company and the penal sum, ascertained the per centum the creditors would be entitled to on an equal distribution between all, and as a result awarded to the bridge company the sum of $4,536.58. The report of the auditor was approved by the court below, and it meets with our approval as well. Whatever the surety company will have paid on this contract of suretyship in excess of its legal liability therein, must be regarded as a voluntary payment by it. Its covenant while with the government was exclusively for the protection of the contractors under the Penn Erecting Company. When the surety company entered into the covenant it did not know, and could not have known, the parties with whom the erecting company would contract, the amounts that would be due each, or the times of payment; but it must have understood its covenant to be for the protection of all alike, that is to say, that each was to share in the protection of the covenant on an equitable basis. Whether it did so or not, it is the plain and manifest meaning of the bond; the subcontractors, not a selected few, but all embraced in the class, are the real use parties. It matters not that their names are not written in the bond. They could not have been because the bond was a condition precedent to the awarding the contract; but the use is as clearly defined as though their names appeared. Besides, to allow the surety, either through favoritism or neglect, to work out a result which would give priority to some creditor or creditors over others, would be to defeat the very purpose the government has in view in requiring bonds for the protection of subcontractors. The surety .company is. without the slightest equity. It paid the judgments obtained against it with full knowledge of the fact that there was then an outstanding and unsatisfied claim of the bridge company; then in suit, for an amount which, together with'the claims already liquidated, much exceeded the limit of its own liability. Yet with knowledge of this fact, it proceeded to pay some of the creditors in full. It is no excuse to say that these payments were made to avoid execution. Threatened execution could and should have been met by appeal to the court to put its restraining hand upon the creditor who would attempt to use its process, not for the collection of his own debt solely, but in part to defeat someone else in equal right with himself, in the fund to be subjected, and that too at the cost of the surety. We see no merit in the appeal, and it is accordingly dismissed at the costs of the appellants.


source: Caselaw Access Project

author: Mr. Justice Mestrezat,

license: Public Domain

text:
    Union Safe Deposit Bank of Pottsville to use, Appellant, v. Nichter.

      Practice, C. P. — Judgment—Opening judgment — Affidavit of defense — Supplemental affidavit of defense.

    1. Where the court makes an order allowing judgment to be entered for want of a sufficient affidavit of defense, but before judgment is actually entered, the defendant moves for permission to file a supplemental affidavit of defense, and thereafter judgment is entered, the court may open the judgment and permit a supplemental affidavit of defense to be filed.

      Bond — Bond of indemnity — Mortgage—Mortgage held as collateral —Interest.

    2. In an action on a bond of indemnity it appeared that the plaintiff, a bank, held a mortgage against certain real estate, and to protect itself bought in the real estate at a sale in bankruptcy. The sale discharged the lien of the mortgage. The defendants purchased the property from the plaintiff, and gave the bond in suit by which they agreed to protect the plaintiff from any loss which might result from the mortgage not being paid in full out of the proceeds of the sale upon distribution thereof. The bond stipulated for the payment of “the difference between the said mortgaged debt with interest on the same until the same is paid together with costs,' and the amount awarded to said mortgage upon distribution.” No actual distribution or payment was made until two and one-half years after the sale. The plaintiff then received the full amount of the mortgaged debt, with interest thereon to the date of the sale. It then brought suit to recover interest from the date of the sale to the date of distribution. Defendant filed an affidavit of defense which averred that the mortgage was held by plaintiff as collateral security for a loan, that the plaintiff had been paid all interest on the loan by the debtor, and that it had not sustained any loss or damage by reason of the mortgage not having been paid in full with interest and costs. Held, that the affidavit of defense was sufficient to prevent judgment.
    3. In such a case when the debtor paid the loan, including the interest for which the suit on the bond was brought, his obligation to the bank was met, and the assignment of the bond to the debtor by the plaintiff could not revive the obligation or impose a further liability upon the defendants.
    Argued Feb. 16, 1909.
    Appeal, No. 367, Jan. T., 1908, by plaintiff, from order of C. P. Schuylkill Co., May T., 1908', No. 395, discharging rule for judgment for want of a sufficient affidavit of defense in case of Union Safe Deposit Bank of Pottsville, now to the use of Charles Meyers, v. J. H. Nichter, M. Mellet and P. J. Ferguson.
    Before Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit upon a bond of indemnity. Before Marr, P. J.
    Rule for judgment for want of a sufficient affidavit of defense.
    Rule to open judgment.
    The facts appear by the opinion of the Supreme Court.

      Error assigned was order discharging rule to open judgment.

      C. E. Berger, with him C. E. Breckons, for appellant.—
    The words “mortgage debt,” we contend, are comprehensive enough to include that which was due on the mortgage, including interest and costs, and not merely the principal of the mortgage, as held by the court: McCalla v. Ely, 64 Pa. 254: Terry’s Est., 13 Phila. 298.
    It was error to open the judgment: Mazet v. Pittsburg, 137 Pa. 548.

      March 29, 1909:
    It will be noticed that the cases relied on by the defendants, viz.: Andrews v. Packing Co., 206 Pa. 370; Loeper v. Haas, 24 Pa. Superior Ct. 184; Slag Works v. Krause, 5 Pa. Superior Ct. 622, and Callan v. Lukens, 89 Pa. 134, arose upon rules for judgment for want of a sufficient affidavit of defense, and the supplemental affidavits must, therefore, have been allowed before judgment.

      James B. Reilly, with him D. J. Ferguson, for appellees.—
    The day of sale is the time at which interest must cease, the property being then taken from the defendant and the liens, in contemplation of law, paid: Brownsville Deposit, etc., Bank’s Appeal, 96 Pa. 347; Bachdell’s Appeal, 56 Pa. 386.
    The allowance of the supplemental affidavit was proper: Andrews v. Packing Co., 206 Pa. 370; Loeper v. Haas, 24 Pa. Superior Ct. 184.
    An order making absolute a rule to open a judgment, or discharging it, will not be reversed when the lower court exercised a sound discretion. The discretion of the lower court is that of a chancellor in equity: La Roche Electric Works v. Emery, 173 Pa. 331; Pfaff v. Thomas, 3 Pa. Superior Ct. 419; Crawford v. Rath, 4 Pa. Superior Ct. 612; Stephan v. Hudock, 4 Pa. Superior Ct. 474; Renwick v. Richardson, 5 Pa. Superior Ct. 202; Heist v. Tobias, 182 Pa. 442; Hook v. White, 193 Pa. 397.
   Opinion by

Mr. Justice Mestrezat,

The learned judge was clearly right in opening the judgment entered June 29, 1908, and permitting the defendants to file the supplemental affidavit of.defense. No judgment had been entered on the order of the court when the application was made for leave to file the supplemental affidavit and, therefore, the matter was within the power of the court, and the affidavit subsequently filed shows that the power was properly exercised.

The facts averred in the supple'mental affidavit were sufficient to prevent a summary judgment. The Union Safe Deposit Bank, the legal plaintiff, purchased certain real estate of the Miner’s Brewing Company in Schuylkill County at the sale of a trustee in bankruptcy. The purchaser held a mortgage against the property the lien of which was discharged by the sale. The defendants purchased the property from the Union Safe Deposit Bank and in addition to the sum paid therefor “agreed to protect and indemnify the said Union Safe Deposit Bank from any loss which may result by reason of the said mortgage not being paid in full out of the proceeds of said sale upon distribution thereof.” In pursuance of this agreement the defendants gave to the bank an indemnity bond the condition of which was that the defendants “ shall indemnify and shall save and keep free the said Union Safe Deposit Bank from any loss or damage by reason of said mortgage, debt, interest and costs not being paid in full out of the proceeds of said sale upon distribution thereof by the Referee in Bankruptcy having jurisdiction of the same, or shall pay or caused to be paid to said Union Safe Deposit Bank the difference between the said mortgage debt with interest on the same until the same is paid, together with costs, and the amount awarded to said mortgage upon distribution as aforesaid.” The bank was awarded by the referee in bankruptcy out of the proceeds of the sale of the bankrupt’s property the debt in full of the mortgage, with interest thereon to October 14,1905, the day of the sale.

This action of assumpsit was brought on the indemnity bond to recover $3,985.28, the interest due on the amount awarded the bank by the bankrupt court from October 14, 1905, the date of the award, to March 13, 1908, the date of the actual distribution and payment of the amount received by the bank. 'It is contended by the plaintiff that its claim is covered by the language of the condition of the indemnity bond and that the obligation was given for the express purpose of protecting it against the loss which it anticipated and which occurred by reason of the delay in the distribution of the proceeds of the sale of the bankrupt’s property.

The supplemental affidavit sets up, inter alia, the defense that the mortgage was given as collateral security for a loan made by the bank to Meyers, the use plaintiff, and was so held by the bank at the time of the sale of the bankrupt’s real estate; that the bank has been paid all interest due it by Meyers on the loan for which the mortgage was held as collateral security; and that it “has not sustained or suffered any loss or damage by reason of said mortgage .... not being paid in full, with interest and costs lawfully due thereon, out of the proceeds of said sale, as stipulated in said bond.”

This brief recital of the facts discloses a complete defense to the plaintiff’s claim. If Meyers has paid the bank’s claim in full, there is no ground whatever for its contention that it is entitled to recover on the bond the amount of its claim unpaid by the referee in bankruptcy because the bond provides that it shall be paid “the difference between the said mortgage debt with interest on the same until the same is paid, together with costs, and the amount awarded to said mortgage upon distribution.” How this part of the obligation might be construed if standing alone and uncontrolled by the other parts of the obligation we need not determine. In ascertaining the liability of the defendants on the bond in suit, we must, however, interpret the instrument so as to effectuate the intention of the parties. We are, therefore, required to consider the whole instrument, including the recitals, in order to determine the extent of the condition of the bond. The bond itself clearly discloses its purpose and the extent of the liability imposed upon the obligors. We have given some of the recitals as a part of the facts of the case. The manifest purpose of the instrument was to protect the bank against loss on its mortgage, held as collateral security for a loan to Meyers. This is distinctly averred in the bond, wherein it is recited that the obligors “have agreed to protect and indemnify the said Union Safe Deposit Bank from any loss which may result by reason of the said mortgage not being paid in full out of the proceeds of said sale upon distribution thereof.” The purpose of the condition of the bond was to provide against such loss, and not against a liability over and beyond it. The bank had no reason to impose a greater liability on the obligors, and they clearly intended to assume no greater responsibility. The alternative clause of the condition of the bond, relied on to impose liability, was simply a different expression than the prior one, but it was intended for the same purpose, which was to protect the bank against loss on the Meyers claim secured by the mortgage. There can be no valid reason why this clause of the condition of the bond should impose a different obligation on the obligors than indemnity for loss sustained by the bank by reason of its failure to receive the full amount of the claim secured by the mortgage. The recitals in the bond disclose no liability or an intention to assume any other obligation than the protection of the bank against loss on its mortgage. On the other hand, the intention to afford such protection is clearly shown by the instrument itself.

We must accept the averments as verity, and they set up a complete defense to the action. The affidavit alleges that the mortgage was held as collateral security for a loan to Meyers. He was, therefore, the principal debtor of the bank and required to pay the amount of the loan. When he paid the loan, including the interest for which this suit was brought, his obligation to the bank was met and he was no longer its debtor.' The debt having been satisfied in full, there was no longer any liability on the mortgage given as collateral security to secure its payment. When the Meyers’ debt had been satisfied, the condition of the indemnity bond was complied with, and the liability of the obligors was at an end. The assignment of the bond to Meyers by the bank would not revive the obligation or impose a further liability upon the defendants. The obligation indemnified the Union Safe Deposit Bank and not Meyers against loss on the mortgage. Hence, when the claim for which the mortgage was held as collateral had been satisfied in full, the condition of the bond was complied with and the bank could not create a liability in favor of Meyers by assigning the bond to him.

The assignments of error are overruled and the order is affirmed.


author: Me. Justice Mestrezat,

text:
    Levi’s Estate.

      Will — Executors and administrators — Carrying on business of decedent — Estoppel.
    1. Where a testator directs that his sons shall continue his business after the death of his wife, and one of his sons who was also the sole executor, carries on the business as executor, with the acquiescence of the widow and testator’s children, who are legatees, and it appears that the widow receives her living expenses from the proceeds of the business, neither the widow nor the children can object to the payment of creditors whose claims are based upon transactions with the executor while continuing the business after the death of the testator.

      Decedents’ estates — Claim of widow — Loan to husband — Evidence.
    2. The claim of a widow to recover the amount of a loan from her husband’s estate will be sustained, where a son who was manager of the decedent’s estate, testifies that the money was raised on a mortgage of his mother’s separate property, that it went into the decedent’s business, that after his father’s death the mortgage was paid off out of money received from an insurance policy on the decedent’s life in the widow’s favor, and such testimony is not contradicted, but is corroborated by papers relating to the different transactions. In such a case the mere relationship of the parties is not sufficient in itself to discredit the son’s testimony.
    Argued Feb. 17, 1909.
    Appeals, Nos. 29 and 30, Jan. T., 1909, by David Levi, executor, from decree of O. C. Lycoming Co., June T., 1906, No. 35, dismissing exceptions to auditor’s report in Estate of Michael Levi, deceased.
    Before Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    No. 29 reversed. No. 30 affirmed.
    Exceptions to report of John J. Reardon, Esq., auditor.
    From the record it appeared that Michael Levi died on April 9, 1906, leaving a will by which he provided, inter alia, as follows:

      “ Item. It is my wish and I direct that after my death, or if my beloved wife, Hermine Levi, shall be living at that time, then after her decease, my sons, Morris C. and David L., shall continue the clothing business which I am now engaged in, until all my living daughters are married, during which time, and for which purpose, my said sons shall have the use of the money, which I shall have in the bank to my credit at my decease, and during which time the profits of said business shall be disposed of as follows, to wit: ”
    He appointed his son David to be the sole executor of his will. David as executor carried on the business of the testator, and his mother and brothers and sisters acquiesced in this course, and the widow received her living expenses out of the proceeds of the business. At the audit various creditors presented claims based on transactions with the executor while conducting the business after the father’s death. These claims were allowed by the auditor.
    The testator’s wife, Hermine Levi, claimed the sum of 356,000 which she claimed she had loaned to her husband during his lifetime. This claim was disallowed by the auditor. David Levi as executor and Hermine, the widow, filed exceptions to the auditor’s report. All of the exceptions were dismissed, Hart, P. J., filing the following opinion:
    The findings and conclusions of the auditor as to the construction of the will of Michael Levi, deceased, relative to the duty of the executor to marshal the assets of the estate and pay the debts of the decedent contracted during his lifetime; the want of authority contained in the will to conduct the business of the decedent during the lifetime of the widow of the decedent; the ascertainment of the value of the personal estate of the decedent and the valuation placed thereon; the distribution to the creditors of the decedent, and the rejection of the claim of Hermine Levi, seem to us to be sustained by the evidence and warranted under the law.
    The only part of the auditor’s findings and conclusions about which we have doubt is that part relating to the distribution to the creditors whose claims against the estate were contracted for goods furnished in carrying on the clothing business, as formerly conducted by the decedent, by the executor, after his decease.
    By the terms of the will, any surplus over and above the amount required to pay the debts of the decedent would belong to the widow of the decedent during the period of her natural life, with remainder to the children of the testator named.
    A diversion of this fund, or balance left after the payment of debts, could only be justified on the ground that the widow and legatees in remainder had done some act or thing that would estop her and them from denying the right of such creditors to participate in the distribution of such balance, and make it inequitable and unjust to such creditors not to allow them to participate in this distribution.
    The counsel for the accountant and for the widow of the decedent, in his written argument to the court, says: “The executor openly and notoriously proceeded to carry on the business of the decedent. To this the widow of Michael Levi made no objection, nor did any of her children or legatees, nor did any of his creditors.” And again he says: “The widow, the children and legatees of the testator and all the creditors of the testator must either have interpreted the will of Michael Levi in the same way that his executor interpreted it, namely, as authorizing him to carry on the business, or assented to carrying on of this business as the best way of settling this estate.”
    It also appears that during the period of time these credits were given and debts contracted, the widow was receiving her living expenses from the proceeds of the business being carried on.
    Now, this being the situation as disclosed and contended for by the widow’s counsel, it would seem to us as though she cannot be heard now to deny to the creditor his claim, who was led to give credit on the belief that the business was being so conducted as to give him a lawful claim against the estate of the decedent.
    Whilst this cannot affect the creditors whose claims are based on contract with the decedent in his lifetime, and whose rights to participate in this distribution and to be paid the ■full amount of his claim could only be waived by express agreement based upon a valid consideration, the widow and legatees stand in a different relation to the estate; and being participants in the conducting of the business as carried on by the executor after the death of the testator, and admittedly assenting to the conducting of the same and in obtaining the credit on which these claims are based, it does not seem unjust or inequitable that their claim as widow and legatees should give way to that of creditors whose claims have been contracted on the faith of what they now and what they have always claimed to be the right of such creditor to look to the funds and property of the estate of the decedent for their pay.
    This being so, the auditor’s distribution to such creditors seems to us justifiable and equitable.
    And now, January 5, 1909, the exceptions to the auditor’s report are overruled and the report is confirmed absolutely.

      Errors assigned were in dismissing exceptions to auditor’s report.

      Max L. Mitchell, for appellants in Nos. 29 and 30. —
    If the executor, either under the terms of the will, or by the consent of all parties interested, had the right to carry on the business of Michael Levi, and if he did carry on this business in an ordinarily cautious and prudent manner, and in the same way that he would have conducted his own business affairs, acting in good faith throughout, and in the manner which he thought was for the best interests of the estate, this is all the law requires, and he cannot be surcharged because of a disastrous conclusion: Semple’s Estate, 189 Pa. 385; Waddell’s Estate, 196 Pa. 294; Stewart’s Appeal, 110 Pa. 410.
    Debts contracted by an executor in carrying on the business of his testator, but who is not authorized by the will to carry it on, are not claims against the estate, but merely individual liabilities of the man who acts as executor: First Nat. Bank’s Appeal, 7 Atl. Repr. 207; Lucht v. Behrens, 28 Ohio, 231; D., L. & W. R. R. Co. v. Gilbert, 44 Hun, 201; Williams on Executors, 1900, 1901; Corr’s Estate, 8 Pa. Dist. Rep. 209; Williamson’s Appeal, 94 Pa. 231.
    A wife claiming as a creditor against other creditors of the husband must prove her claim by evidence clear and satisfactory to a degree beyond that required of other creditors and leave no doubt of its good faith and its truth in fact. This we think Mrs. Levi did. The books of the testator on which every item claimed by her as a credit appears as a charge against him, are an admission by the testator himself that he owed his wife this money.
    March 29, 1909:

      Herbert T. Ames, with him A. R. Jackson, Candor & Munson and Thos. H. Hammond, for appellees. —
    It is necessary for a wife to prove her right as a creditor of her husband by distinct and clear proof that the transaction was a loan from her own separate estate; that the money passed over to him. The burden is upon her to establish this fact fully and clearly: Hause v. Gilger, 52 Pa. 412; Lahr’s Appeal, 90 Pa. 507; Dailey’s Assigned Estate, 200 Pa. 140.
   Opinion by

Me. Justice Mestrezat,

We agree with the auditor and the court below in their construction of the will of Michael Levi, deceased, and are of opinion that David Levi, the executor, has no just cause of. complaint against the decree entered by the court. We think there was ample evidence to sustain the auditor’s findings of fact except as to part of Mrs. Levi’s claim, and his report having been confirmed by the court we will not disturb it save in this one respect.

We do not agree with the auditor and court in the dis-allowance of Hermine Levi’s claim of $6,000. We are aware that claims of this character must be sustained by a higher degree or quality of proof than is required of a stranger. She must establish her claim not simply by the weight of the evidence, but by proof that is clear and satisfactory. The opportunities for fraudulent collusion between husband and wife are so great, and the difficulty of defeating it by opposing proof imposes so great a burden that the protection of creditors in such cases requires a much higher standard of proof than in ordinary cases. As said in Earl v. Champion, 65 Pa. 191, 195: “The family relation is such and the probabilities of ownership so great on the part of the husband, that a plain and satisfactory case should be made out before the wife can be permitted to hold property against honest creditors.”

We think Mrs. Levi brought herself within the most stringent rule applicable in such cases, and sustained her claim of $6,000 by proof that was both clear and satisfactory. In fact, it is not clear how under the circumstances she could have proved her claim by a higher degree of proof, except the whole transaction had been in writing. Her claim was for money secured from Snellenburg oh a mortgage of her real estate in Williamsport and loaned to her husband. David Levi, her son, testified that the money was raised on the mortgage of her separate property and that it went into her husband’s business. He was the manager of his father’s business and, therefore, had an opportunity to know the facts about which he testified. He further testified that the mortgage was paid by Mrs. Levi after her husband’s death out of money which she received from a life insurance policy carried by Levi in her favor. The testimony of David Levi was not impeached by any witness, nor by any fact except his relationship to the interested parties. His testimony was corrobo-' rated by the production of the bond and mortgage, a letter of Snellenburg acknowledging the receipt of the money from Mrs. Levi, and the record satisfaction of the mortgage after Levi’s death. There was nothing, save the relationship of the parties, to discredit any part of this testimony. Every opportunity was given the appellees to cross-examine David Levi and to produce testimony to defeat the claim of Mrs. Levi and to discredit the proof introduced in its support. The mortgage records of Lycoming county, the life insurance company and the testimony Of Snellenburg were all available to the appellees as evidence if they desired to impeach the claimant’s testimony. If David Levi was testifying falsely as to the insurance policy and the money received on it, or as to the mortgage transaction, the sources of information were open to the appellees by which they could have easily discovered the fact. It was quite natural for David Levi to act for his mother in all these transactions, and the fact is not in itself sufficient to discredit his testimony, especially as he gave the data which enabled the appellees to verify the truth or falsity of his testimony. He gave a detailed statement as to the loan by Snellenburg, how it was secured and how it was paid in addition to the written evidence sustaining the claim. Mrs. Levi cannot testify, her lips are sealed, and the testimony in the case shows that David Levi knew for whom and for what purpose the money was borrowed from Snellenburg. Acting as the agent of his mother, he also knew about the life policy, the receipt of the money on it, and the payment of the Snellenburg mortgage. As we have said the evidence in support of Mrs. Levi’s claim is not contradicted by either parol or record evidence. It shows the loan to Levi, and it also shows that the source from which Mrs. Levi obtained the money to make the loan was not her husband or her husband’s estate. It is not material whether she owned the real estate upon which the mortgage was placed in view of the fact that the mortgage was satisfied out of Mrs. Levi’s own funds, the money she received on the life policy of her husband. The two material questions in the case are whether there was a loan by Mrs. Levi to her husband, and whether the loan was made by her from money other than that received from her husband. The uncontradicted evidence in the case answers both questions in the affirmative.

The appeal of David Levi, executor, at No. 30, January Term, 1909, is dismissed and the decree as to him is affirmed. In the appeal of Hermine Levi at No. 29, January Term, 1909, the second assignment of error is sustained as to the claim of $6,000, which is directed to be allowed, and with this modification, the decree is affirmed.


author: Mr. Justice Elkin,

text:
    Delaware, Lackawanna & Western Railroad Company’s Tax Assessment
    (No. 1).

      Taxation — Assessments—Uniformity—Coal lands.

    1. In order to conform to the constitutional principle of uniformity in taxation, the courts will, in determining the valuation of coal lands, take into consideration the fact that the assessed value of real estate in the district in which the coal lands are situated is below its actual value, and will assess such lands according to the ratio of the actual to the assessed value of other lands in the district; but in determining what the proper ratio is, the court cannot include personal property so as to increase the percentage of ratio to the disadvantage of the owners of coal lands.

      Taxation — Assessments—Appeals—Act of April 19, 1889, P. L. 37.
    2. On appeal from the board of revision to the court of common pleas under the act of 1889, the proceeding as to proofs and pleadings is de novo and the courts must hear and determine the questions in dispute under their general equity powers in the same manner as if the controversy were between private litigants.
    Argued Feb. 23, 1909.
    Appeal, No. 370, Jan. T., 1908, by The Delaware, Lackawanna & Western Railroad Company, from order of C. P. Lackawanna Co., Nov. T., 1907, No. 513, on appeal from tax assessment in the Matter of the Assessment of Land of The Delaware, Lackawanna & Western Railroad Company in the Sixth Ward of the Borough of Taylor.
    Before Fell, Brown, Potter, Elkin and Stewart, JJ.
    Reversed.
    Appeal from the decision of the county commissioners of Lackawanna county.
    This appeal was tried with several others under the following agreement:
    For the purpose only of these appeals, appellants waive the claim that every coal property should be separately assessed at its individual value and consent that the court may adopt for the purpose of fixing the value of coal lands a uniform average rate per foot acre of all coal which can be mined at a profit. The quantities of such minable coal to be fixed either by agreement of the parties or their engineers, or, so far as such agreement cannot be reached, to be ascertained by the court upon evidence. Evidence to be received applicable .to all appeals so far as relevant upon the ratio of actual to assessed value of other real estate in the county and its several municipal divisions in which the coal lands are situated.
    It is understood by this agreement that no right of appellants to appeal from the values fixed by the court, excepting as expressly waived in the agreement, shall be construed to be waived.
    The court after hearing fixed the assessment at $150 per acre as actual value from which forty per cent was to be deducted so as to make the assessment uniform with that of other real estate in the county.
    On motion for rehearing the court filed the following opinion:
    In our order of July 13,1908, the majority of the court fixed the sum of $60.00 as the assessment rate per foot acre of coal in the county. Since handing down the order our attention has been called to what is termed by appellants' counsel as “clear error.” We stated in the order that the average ratio to actual value of surface assessments is forty per cent. We based this conclusion on a tabulation of surface assessments submitted to us by respondents. It appears now that this tabulation included personal property. In a strict and technical sense, the criticism of appiellants’ counsel is justified. The correct tabulation would reduce the ratio of surface assessments to about thirty-five per cent of the actual value, and we are asked now to change the assessment ratio per foot acre accordingly. We decline to do this, because we are not disposed to treat the question along mathematical lines. The problem submitted to us should be considered on broader grounds. We, therefore, reaffirm the order of July 13, 1908, fixing the assessment on coal per foot acre through the county at $60.00.

      Error assigned was the order of the court.

      March 29, 1909:

      Everett Warren, of Willard, Warren & Knapp, with him D.R. Reese, for appellant. —
    Coal lands are assessable as real estate; they are 'land, in other words. And it is submitted that the court below was bound to fix the rate so that it would bear the same proportion to the figure which it determined represented the assessable value under the law of coal lands that was found to have been adopted by the commissioners in fixing the assessable figure for the other real estate in the county: Rockhill Iron & Coal Co. v. Fulton County, 204 Pa. 47; Pringle’s App., 6 Luzerne Leg. Reg. Reps. 525; Richter’s App., 8 Pa. C. C. Rep. 119; Cambridge Spring Co.’s App., 21 Pa. C. C. Rep. 669; Harrison’s App., 17 Pa. Dist. Rep. 15; Mattern v. Huntingdon County Commissioners, 17 Pa. Dist. Rep. 15.

      John P. Kelly, of O’Brien & Kelly, with him John J. Toohey, county solicitor, and Clarence Balentine, for appellees.
   Opinion by

Mr. Justice Elkin,

Controversies growing out of the assessment and collection of taxes are as old as civilization. To question the assessment, to doubt the levy and to delay the collector may be classed among those inalienable rights of mankind not guaranteed by any constitution but very generally asserted under the law of human nature. From time immemorial the people •have resisted all attempts to increase the burdens of taxation and have yielded only when convinced of the governmental necessity demanding such increase. Each person, natural or artificial, must bear his share of the public burdens, and the burden of each is measured by the ratio ascertained by dividing the total amount of taxes necessary to meet the public ■burdens in a given district by the whole valuation of property within the territorial limits of that district, and when the ratio •is thus fixed, the amount of tax to be paid by each individual property owner is determined by multiplying the assessed value of his property by this ratio. This rule has resulted from the demands made by the people upon legislative bodies for equality of taxation. The large property owner and the small holder pay upon the same ratio, and when the valuation has been ascertained and fixed upon a fair basis, which means that the valuation should be based as nearly as practicable upon market value, and if not on market value, then upon the relative value of each property to market value, there results what is known in organic and statute law as uniformity, which is the desideratum to be attained in any just system of taxation. While every tax is a burden, it is more cheerfully borne when the citizen feels that he is only required to bear his proportionate share of that burden measured by the value of his property to that of his neighbor. This is not an idle thought in the mind of the taxpayer, nor is it a mere speculative theory advocated by learned writers on the subject, but it is a fundamental principle written into the constitutions and statutes of almost every state in this country. In Pennsylvania the framers of the new constitution embodied this principle in our organic law in terms so plain that no one should misunderstand its meaning or doubt its application, and the people by the adoption of that instrument placed the seal of their approval upon a system of taxation which has for its comer stone uniformity in the valuation, levy and" collection of all taxes. Section one of article nine provides that, “All taxes shall be uniform upon the same class of subjects, within the territorial limits of the authority levying the tax, and shall be levied and collected under general laws.” There is, perhaps, no other section of the constitution upon which the courts above and below have been so frequently required 'to pass in the administration of their duties. The central thought running through all the opinions is that the principle of uniformity is a constitutional mandate to the courts, to the legislature, and to the taxing authorities, in'the levy and assessment of taxes which cannot be disregarded. The purpose of requiring all tax laws to be uniform is to produce equality of taxation. Absolute equality is difficult of attainment, and approximate equality is all that can reasonably be expected. Hence it has been held that where there is substantial uniformity the constitutional requirement has been met: Kelly v. Pittsburg, 85 Pa. 170; Fox's Appeal, 112 Pa. 337; Commonwealth v. Canal Company, 123 Pa. 594. But all these cases hold there must be substantial uniformity which means as nearly uniform as pfacticable in view of the instrumentalities with which and subjects upon which tax laws operate. It is the duty of the courts in dealing with this subject to enforce as nearly as may be equality of burden and uniformity of method in determining what share of the burden each taxable subject must bear. With this thought for our guide, we must now inquire as to the facts and the situation of the parties in the case at bar under the law and the pleadings. The right of appeal from the decision of the county commissioners, or board of revision, to the court of common pleas is given by the Act of April 19, 1889, P. L. 37. When an owner of real estate or other taxable property has taken an appeal as authorized by the act it is the duty of the court to proceed to hear and determine the questions raised and make such order or decree touching the same as may seem just and equitable, “having due regard to the valuation and assessment made of other real estate in such county or city.” It will be observed that the courts in dealing with this subject under the provisions of the statute act under their general equity powers with the single limitation that in arriving at a just conclusion “due regard to the valuation and assessment made of other real estate” must be given. This is the legislative expression of the principle that all taxes shall be uniform upon the same class of subjects, and is a direction to the courts when hearing such cases that the valuation and assessment of the same class of taxable subjects belonging to other owners in the same district, must be considered. In other words, the valuation of the property of one owner is so closely related to the valuation of the property of all other owners in the same district that the court must be advised as to the general valuation of other properties in order to determine what is a just and uniform valuation of the property in question. Each taxpayer, no matter how great or small, has a right to demand that his property shall be assessed upon the basis of a uniform valuation of other properties belonging to the same class and within the territorial limits of the authority levying the tax, and it is the duty of all the authorities dealing with this subject to administer the law in a spirit to produce as nearly as may be uniformity of result. Coal lands are the taxable subjects dealt with in this proceeding. They are real estate, and for purposes of taxation must be treated as belonging to the same class of subjects as other real estate located within the same district and being subject to the same tax authorities. It is apparent, therefore, that in determining what the assessed value of the coal lands of appellant should be due regard must be had for the valuation of all other real estate in the same district. It is true that the act of 1889 does not prescribe any method of procedure to guide the courts in such cases, but in the absence of any statutory requirement, we can see no reason why the parties should not proceed, and the courts hear and determine the questions involved, in the same manner as other controversies are heard and determined between private litigants. When the appeal is perfected in the court of common pleas the whole proceeding is de novo and the facts must be found and the law applied as in any other case. The parties appear by counsel and the court sitting as a chancellor hears and determines upon the proofs offered, or it may be that the parties through their counsel may agree with the consent of the court as to the facts, or as to the method of procedure by which the necessary facts may be ascertained. This is what was done in the present proceeding. In order to arrive at a uniform valuation of the coal lands of appellant for purposes of taxation, and in view of the almost endless amount of detail required if each tract should be treated separately, at the suggestion of the court, counsel submitted a method of arriving at a proper valuation of the lands in question, and the hearing then proceeded along the lines agreed upon in order to determine the assessable value. The court, the counsel, and the parties assumed as a fact, and it is a fact, that the assessed value of real estate in the district is far below its actual value. It was also assumed, and properly so, that in order to make the valuation of appellant’s property uniform with the valuation of other real estate it would be necessary that the ratio of actual to assessed value should be the same upon all real estate, including coal lands, within any district whose authorities were attempting to levy the tax. Evidence was then introduced to show the ratio of actual to assessed value of other real estate, and this for the purpose of enabling the court to find as a fact what that ratio was so that when the actual value of appellant’s property should be determined the ratio thus found could be applied. The parties through their counsel and with the approval of the court proceeded along these lines to offer proofs and try their case.

After the hearing the court took the papers and in due time found as facts, the actual value of the coal lands returned for assessment, and the ratio of actual to assessed value, and then determined the amount of the assessment upon this basis. We think it was clearly within the rights of the parties and the powers of the court to so hear and determine the controversy. It happened, however, in determining what the proper ratio was, the court included personal property which did not belong to the same class of subjects, and this made considerable difference in the percentage of ratio to the disadvantage of appellant. The court was, then asked to correct the error by fixing the proper ratio, which it refused to do, because while conceding the error on the whole record it was thought the evidence was sufficient to sustain the valuation originally fixed. In this we think there was error. We agree that the desired result to be obtained was a uniform valuation of coal lands and that it was within the power of the court to receive all proofs bearing on this question and to determine the same upon a just basis having due regard for the valuation of other real estate in the district. The court and the parties were not required to adopt any particular method of determining the assessable value, but when a particular method was adopted, and that method a fair one, it was binding upon the parties and the court should have so regarded it. To hear the case on one theory and after all the proofs are in to decide it upon another would be to disregard orderly methods of procedure and might do violence to the rights of parties. When the parties at the suggestion and with'the approval of the court agreed upon a method of procedure to determine the question involved, it should have been followed The method adopted was reasonable and fair and there is no sufficient reason why it should have been disregarded after the hearing. Under the authority of Rockhill Iron & Coal Co. v. Fulton County, 204 Pa. 44, the learned counsel for appellees request this court to review the whole record and determine a proper valuation of the coal lands for purposes of assessment. It is true we have this power, but in the exercise of it, the pleadings and the course of procedure in the court below should be our guide, and unless manifestly wrong under the law, would be followed here. The court below acted clearly within its authority in every step taken and only erred because it failed to apply the rule adopted at the hearing for the determination of the assessable value. There is no error in any other respect so far as disclosed by the record. The learned counsel for appellees have also invoked the act of 1842 in aid of their contention that the valuation fixed by the court in the present case should be sustained. This act indicates that the board of revision shall inquire whether all property returned for taxation has been valued at a sum or price not less than the same would bring after notice at public sale. There can be no doubt of the legislative intention which finds expression in the act of 1842 and the earlier statutes, that actual selling value shall be the standard to determine assessable value, and if the question could be squarely raised as to the proper value to be placed upon real estate in any district, or in all districts, the courts would necessarily hold that actual selling value was the proper standard for fixing assessable value. However, the constitution and the act of 1889 have emphasized the principle of uniformity as more important than the standard of valuation. The assessed valuation should as nearly as possible represent the actual value, but it must be uniform no matter whether the proper standard is followed or not. It is a well-known fact that from the beginning of our state government to the present time in nearly every section of the commonwealth the assessed value of property is ridiculously low as compared with actual value. No doubt the framers of the constitution had this thought in mind when they wrote-into the fundamental law that all taxes must be uniform on the same class of subjects. It will not do to assess farm lands at one-fifth their actual value, dwelling houses at one-third, manufacturing establishments at one-half, and coal lands at full value. The constitution says the valuation must be uniform on the same class of taxable subjects and real estate is a taxable subject of a particular class, and coal lands are real estate, hence the rule of uniformity must be applied to all kinds of real estate as a class.

Decree reversed and record remitted to the court below with instructions to determine the proper ratio without including personal property and when the ratio is so determined then to fix the proper valuation of the coal lands in question upon this basis, costs on the appeal to this court to be paid by appellees.


text:
    Delaware, Lackawanna & Western Railroad Company’s Tax Assessment
    March 29,1909:
    (No. 2).
    Argued Feb. 23, 1909.
    Appeal, No. 371, Jan. T., 1908, by The Delaware, Lackawanna & Western Railroad Company, from order of C. P. Lackawanna Co., Nov. T., 1907, No. 515, on appeal from tax assessment in the Matter of the Assessment of Land of The Delaware, Lackawanna & Western Railroad Company in Dickson City Borough.
    Before Fell, Brown, Potter, Elkin and Stewart, JJ.
    Reversed.
   Opinion by

Mr. Justice Elkin,

For the reasons stated in the opinion handed down, ante, p. 240, the decree in this case is reversed and record remitted to the court below with instructions to determine the proper ratio without including personal property, and when the ratio is so determined then to fix the proper valuation of the coal lands in question upon this basis, costs on the appeal to this court to be paid by appellees.


text:
    Delaware, Lackawanna & Western Railroad Company’s Tax Assessment
    March 29, 1909:
    (No. 3).
    Argued Feb. 23, 1909.
    Appeal, No. 372, Jan. T., 1908, by The Delaware, Lackawanna & Western. Railroad Company, from order of C. P. Lackawanna Co., Nov. T., 1907, No. 517, on appeal from tax assessment in the Matter of the Assess? ment of Land of The Delaware, Lackawanna & Western Railroad Company in Lackawanna Township.
    Before Fell, Brown, Potter, Elkin and Stewart, JJ.
    Reversed.
   Opinion by

Mr. Justice Elkin,

Decree reversed and record remitted to the court below with same instructions as given, ante, p. 248, costs on the appeal to this court to be paid by appellees.


text:
    Delaware, Lackawanna & Western Railroad Company’s Tax Assessment
    March 29, 1909:
    (No. 4).
    Argued Feb. 23, 1909.
    Appeal, No. 373, Jan. T., 1908, by The Delaware, Lackawanna & Western Railroad Company, from order of C. P. Lackawanna Co., Nov. T., 1907, No. 563, on appeal from tax assessment in the Matter of the Assessment of Land of The Delaware, Lackawanna & Western Railroad Company in the Twenty-first Ward of the City of Scranton.
    Before Fell, Brown, Potter, Elkin and Stewart, JJ. Reversed.
   Opinion by

Mr. Justice Elkin,

Decree reversed and record remitted to the court below with same instructions as given, ante, p. 248, costs on the appeal to this court to be paid by the appellees.


text:
    Delaware, Lackawanna & Western Railroad Company’s Tax Assessment
    March 29, 1909:
    (No. 5).
    Argued Feb. 23, 1909.
    Appeal, No. 374, Jan. T., 1908, by The Delaware, Lackawanna & Western Railroad Company, from order of C. P. Lackawanna Co., Nov. T., 1907, No. 606, on appeal from tax assessment in the Matter of the Assessment of Land of The Delaware, Lackawanna & Western Railroad Company in the Fifth Ward of Taylor Borough.
    Before Fell, Brown, Potter, Elkin and Stewart, JJ.
    Reversed.
   Opinion by

Mr. Justice Elkin,

Decree reversed and -record remitted to the court below with same instructions as given, ante, p. 248, costs on the appeal to this court to be paid by the appellees.


text:
    Delaware, Lackawanna & Western Railroad Company’s Tax Assessment
    March 29, 1909:
    (No. 6).
    Argued Feb. 23, 1909.
    Appeal, No. 375, Jan. T., 1908, by The Delaware, Lackawanna &. Western Railroad Company, from order of C. P. Lackawanna Co., Nov. T., 1907, No. 617, on appeal from tax assessment in the Matter of the Assessment of Land of The Delaware, Lackawanna & Western Railroad Company in the First Ward of Taylor Borough.
    Before Fell, Brown, Potter, Elkin and Stewart, JJ.
    Reversed.
   Opinion by

Mr. Justice Elkin,

Decree reversed and record remitted to the court below with same instructions as given, ante, p. 248, costs on the appeal to this court to be paid by the appellees.


text:
    Delaware, Lackawanna & Western Railroad Company’s Tax Assessment
    March 29, 1909:
    (No. 7).
    Argued Feb. 23, 1909.
    Appeal, No. 383, Jan. T., 1908, by The Delaware, Lackawanna & Western Railroad Company, from order of C. P. Lackawanna Co., Nov. T., 1907, No. 642, on appeal from tax assessment in the Matter of the Assessment of Land of The Delaware, Lackawanna & Western Railroad Company in Dunmore Borough.
    Before Fell, Brown, Potter, Elkin and Stewart, JJ.
    Reversed.
   Opinion by

Mr. Justice Elkin,

Decree reversed and record remitted to the court below, with same instructions- as given, ante, p. 248, costs on the appeal to this court to be paid by the appellees.


text:
    Delaware, Lackawanna & Western Railroad Company’s Tax Assessment
    March 29, 1909:
    (No. 8).
    Argued Feb. 23, 1909.
    Appeal, No. 384, Jan. T., 1908, by The Delaware, Lackawanna & Western Railroad Company, from order of C. P. Lackawanna Co,, Nov. T., 1907, No. 646, on appeal from tax assessment in the Matter of the Assessment of Land of The Delaware, Lackawanna & Western Railroad Company in Olyphant Borough.
    Before Fell, Brown, Potter, Elkin and Stewart, JJ.
    Reversed.
   Opinion by

Mr. Justice Elkin,

Decree reversed and record remitted to the court below with same instructions as given, ante, p. 248, costs on.the appeal to this court to be paid by the appellees.


text:
    Delaware, Lackawanna & Western Railroad Company’s Tax Assessment
    March 29, 1909:
    (No. 9).
    Argued Feb. 23, 1909.
    Appeal, No. 385, Jan. T., 1908, by The Delaware, Lackawanna & Western Railroad Company, from order of C. P. Lackawanna Co., Nov. T., 1907, No. 645, on appeal from tax assessment in the Matter of the Assessment of Land of The Delaware, Lackawanna & Western Railroad Company in Old Forge Borough.
    Before Fell, Brown, Potter, Elkin and Stewart, JJ.
    Reversed.
   Opinion by

Mr. Justice Elkin,

Decree reversed and record remitted to the court below with same instructions as given, ante, p. 248, costs on the appeal to this court to be paid by the appellees.


text:
    Delaware, Lackawanna & Western Railroad Company’s Tax Assessment
    March 29, 1909:
    (No. 10).
    Argued Feb. 23, 1909.
    Appeal, No. 386, .Jan. T., 1908, by The Delaware, Lackawanna & Western Railroad Company, from order of C. P. Lackawanna Co., Nov. T., 1907, No. 649, on appeal from tax assessment in the Matter of the Assessment of Land of The Delaware, Lackawanna & Western Railroad Company in Throop Borough.
    Before Fell, Brown, Potter, Elkin and Stewart, JJ.
    Reversed.
   Opinion by

Mr. Justice Elkin,

Decree reversed and record remitted to the court below with same instructions as given, ante, p. 248, costs on the appeal to this court to be paid by the appellees.


text:
    Delaware, Lackawanna & Western Railroad Company’s Tax Assessment
    (No. 11).
    March 29, 1909:
    Argued Feb. 23, 1909.
    Appeal, No. 387, Jan. T., 1908, by The Delaware, Lackawanna & Western Railroad Company, from order of C. P. Lackawanna Co., Nov. T., 1907, No. 658, on appeal from tax assessment in the Matter of the Assessment of Land of The Delaware, Lackawanna & Western Railroad-Company in the Second, Third and Fourth Wards of Old Forge Borough.
    Before Fell, Brown, Potter, Elkin and Stewart, JJ.
    Reversed.
   Opinion by

Mr. Justice Elkin,

Decree reversed and record remitted to the court below with same instructions as given, ante, p. 248, costs on the appeal to this court to be paid by the appellees.


text:
    McCabe v. Watt, Appellant
    (No. 1).

      Equity — Nuisance—Mandatory injunction.

    1. A mandatory injunction is a proper remedy in a proper case, and may lie to compel the abatement of a nuisance in some instances. It is an extreme remedy and should only be applied when legal rights are unlawfully invaded, or legal duties are willfully or wantonly neglected. This should be the controlling thought in the mind of a chancellor in the consideration of the respective rights and duties of the parties in a proceeding where a bill is filed praying for such relief.

      Mines and mining — Burning mine — Nuisance—Mandatory injunction — Equity.

      2. A mandatory injunction will not be granted against the lessee of a burning mine at the instance of the municipal authorities of a city within whose limits the mine is situated, where it appears that the company defendant had tried for a year and one-half to put out the fire, and resorted to every means within its power to extinguish it, and in so doing had spent an amount of money equal to its entire capital stock.

      3. In such a case the injunction will not be granted because (1) the fire has ceased to be a nuisance, and has become a public enemy; (2) the legal rights of the complainant have not been willfully and wantonly disregarded; (3) the enforcement of the injunction would require too great an amount of supervision by the court, and (4) because the corporation should not be compelled to do more than it had already done.
    Argued Feb. 24, 1909.
    Appeal, No. 25, Jan. T., 1909, by defendant, from decree of C. P. Lackawanna Co., March T., 1908, No. 10, awarding a mandatory injunction in case of John McCabe et al. and the City of Carbondale v. W. W. Watt and The Finn Coal Company.
    Before Fell, Brown, Potter, Elkin and Stewart, JJ.
    Reversed.
    Bill in equity for a mandatory injunction.
    The facts appear by the opinion of the Supreme Court.
    The court in an opinion by Edwards, P. J., entered the following final decree:
    This cause came on to be heard at a regular term of equity court, and was argued by counsel, and upon consideration thereof, it is ordered, adjudged and decreed as follows:
    1. The bill of complaint is hereby dismissed as to W. W. Watt, one of the defendants.
    2. A mandatory injunction is'directed to be issued against The Finn Coal Company, the other defendant, commanding the said The Finn Coal Company to extinguish and suppress the fire and to abate the nuisance described in plaintiffs’ bill.
    3. The said The Finn Coal Company is ordered to pay the costs of the case.

      Error assigned was the decree of the court.

      M. J. Martin, with him R. W. Rymer, for appellant.—
    The Finn Coal Company has not been negligent in the performance of any duty it owed to the complainants in reference to the fire: Sanderson v. Scranton, 105 Pa. 469.
    If the fire existed on the premises before a lease was made to The Finn Coal Company and without knowledge of the fire being brought home to the coal company, the coal company is not responsible to third persons, such as these plaintiffs, for maintaining a nuisance: Plummer v. Harper, 3 N. H. 88; Curtice v. Thompson, 19 N. H. 471; Knauss v. Brua, 107 Pa. 85; Fow v. Roberts, 108 Pa. 489; Wunder v. McLean, 134 Pa. 334; Reading v. Reiner, 167 Pa. 41; Eastman v. Manufacturing Co., 44 N. H. 143; Staple v. Spring, 10 Mass. 72; Light Co. v. Porter, 167 Ill. 276 (47 N. E. Repr. 206); Wiest v. Traction Co., 200 Pa. 148; Penna. Coal Co. v. Sanderson, 113 Pa. 126; Leidig v. Bucher, 74 Pa. 65.
    The coal company having shown that it owns no other property and has no other assets than that being destroyed by the fire, and has spent more than its capital stock fighting the fire, a decree cannot be made against it which will require a further assessment against its stockholders of more than double its capital stock: Moyer v. Slate Co., 71 Pa. 293; Hedges v. Dixon County, 150 U. S. 182 (14 Sup. Ct. Repr. 71); Magniac v. Thomson, 56 U. S. 281; Thall’s App., 119 Pa. 425; Heard v. Stamford, 3 P. Wms. 409; Henderson v. Overton, 10 Tenn. 394; Combs v. Young, 12 Tenn. 218.
    At the time of filing the complainant’s bill and at the present time the fire was a vis major or inevitable casualty: City of Allegheny v. Zimmerman, 95 Pa. 287; Penna. R. R. Co. v. Fries, 87 Pa. 234; Livezey v. Phila., 64 Pa. 106; Long v. Penna. R. R. Co., 147 Pa. 343; Amoskeag Mfg. Co. v. Ferryboat John Adams, 1 Cliff. (U. S.) 404; Ladd v. Foster, 12 Sawyer (U. S. ), 547; The Grace Girdler, 74 U. S. 196; Scully v. Kirkpatrick, 79 Pa. 324; Taylor v. Caldwell, 3 Best & Smith, 826; Ward v. Vance, 93 Pa. 499.
    Even if we concede that the fire has not reached such proportions as to be a vis major it is at least of such character as to require a person of special skill, judgment and discretion, and his constant supervision and direction over a long series of varied and continuous acts to suppress or confine or extinguish it which a court of equity should not undertake to supervise: Clarno v. Grayson, 30 Ore. 111 (46 Pac. Repr. 426); Texas, etc., Ry. Co. v. Marshall, 136 U. S. 393 (10 Sup. Ct. Repr. 846), Powell Duffryn Steam Coal Co. v. Taff Vale Ry. Co., L. R. 9 Ch. 331; Wheatley v. Westminster Brymbo Coal Co., L. R. 9 Eq. 538; Dentzel v. Rocky Glen Park Co., 7 Lack. Jur. 213; Fleming v. Snook, 5 Beav. 250; Musgrave v. Horner, 31 L. T. Reps. (N. S. ) 632.
    March 29, 1909:

      A. A. Vosburg and I. H. Burns, with them .R. D. Stuart, Gramer & Horton and C. W. Dawson, for appellee. —
    If authority is needed for the proposition that the facts warrant the finding of the court that a nuisance exists which should be abated, we cite: Metzger v. Hochrein, 50 L. R. A. 305; Spelling on Extraordinary Relief, sec. 441; Chesley v. King, 74 Me. 164.
   Opinion by

Mr. Justice Elkin,

A mandatory injunction is a proper remedy in a proper case, and may lie to compel the abatement of a nuisance in some instances. No one questions the power of a court of equity to afford the relief intended to be secured by the interposition of this strong arm of the law if the facts warrant the application of such a remedy. It is an extreme remedy and should only be applied when legal rights are unlawfully invaded or legal duties are willfully or wantonly neglected. This should be the controlling thought in the mind of a chancellor in the consideration of the respective rights and duties of the parties in a proceeding where a bill is filed praying for such relief. Hence, the record presented on this appeal must be examined to ascertain whether under the facts found and not disputed such a case is made out as to warrant a court in issuing its mandate to remove the destructive agency.

A coal mine fire was started in 1902 when Barton was the lessee by dumping hot ashes and cinders into the opening or depression of the surface near the engine room. The smouldering ashes ignited some refuse matter and the fire gradually spread until it came in contact with an old culm bank. The fire at first was scarcely noticed and no danger was apprehended by reason of it. In July, 1903, appellant became the owner and operator of the mine. Barton, who was the owner at the time the fire started, sold out and retired from the business. It is apparent that at the time appellant purchased the mine and property the smoldering fire was either unnoticed or not considered serious because it cannot be assumed that any company would be willing to invest large sums of money in a property being consumed by fire. It was not until 1904 that the fire began to spread and to assume a somewhat serious aspect. Later it developed into a dangerous mine fire and now covers an area of many acres and shows no signs of abating.

In 1905 the lessee adopted such measures as were deemed sufficient to extinguish the fire, but these efforts were unavailing. In the summer of 1906 the lessors contributed $2,000 for the purpose and the appellant consulted a mining engineer as to the best means of putting out the fire, or of confining it within certain limits. A plan was adopted and work on a comprehensive and expensive scale was started in order to meet the emergency and protect the mine property which was being destroyed by the fire. A large force of men was employed and upwards of $35,000 were expended by appellant on this work, which continued for about one year and a. half, when it was abandoned. The fire continued to spread and has now reached such proportions as to menace the health and property of adjacent owners. It should be observed that all of these things have happened within the municipal limits of the city of Carbondale. The complainants now ask a court of equity to compel appellant to do under its decree what it has failed to do after a year and a half of continuous effort and the expenditure of an amount of money equal to its entire capitalization. This, too, in the face of the fact that appellees have stood idly by and done nothing while the property of appellant was being destroyed by a consuming fire beyond its ability to control, and in its efforts to do so has become insolvent. Under these circumstances it must now be determined whether the decree of the court below directing a mandatory injunction to issue should be affirmed.- After careful consideration we have concluded it should not be.

There are four reasons why the decree entered in the court below should not be affirmed, any one of which should be persuasive and all of which are conclusive. First, the injunction is asked for and allowed on the ground that appellant is maintaining a nuisance by failure to put out the fire. This is a misapprehension of the situation. It is a nuisance only in the sense that it is working hurt and damage. In this sense any building on fire would be a nuisance. How can appellant be said to be maintaining a nuisance when it has expended its entire capital stock in an effort to abate» it? If the fire ever was a nuisance in the legal sense, it has long ago spread beyond any such limitation, and should now be regarded and treated as a public enemy. The common interests of all citizens should be united in an effort to subdue it. Second, to warrant the granting of a mandatory injunction it must clearly appear that the legal rights of the complaining party are being invaded, or that the legal duties of the party against whom the writ is directed have been willfully and wantonly disregarded to the prejudice of the complainants. In the proceeding at bar we have to deal with the latter proposition. The proof does not measure up to this standard. It does not clearly appear that appellant has willfully and wantonly neglected or refused to perform its duty, but on the other hand the whole record shows diligent and persistent effort to cope with the situation. This appellant stands before the court with its property burned or burning, its assets all consumed, and its treasury exhausted by the efforts made to control the fire. How can it be said under these circumstances that there has been any such clear failure or neglect of duty as the law requires to sustain a writ of mandatory injunction? Third, a mandatory injunction should never be granted when its enforcement will require too great an amount of supervision by the court. It needs no citation of authorities to sustain this proposition. It is a fundamental principle and of general application in this and other jurisdictions. The principle is conceded but its application is denied in this proceeding. A statement of the facts is the best answer to this position. The enforcement of the decree entered in the court below will necessitate, according to the evidence, the expenditure of $75,000. It will require the employment and supervision of a large force of men for a long period of time. Skillful and experienced men must be employed to direct the work, all of which involves the doing of something from day to day for an indefinite period, and this is what the courts have said will not be undertaken in the enforcement of their decrees, and if foreseen no such decree will be entered. Fourth, the decree entered in the court below is against the corporation, and so far as is disclosed by this record, neither the officers nor the stockholders can be subjected to any individual liability. At most, the corporation could only be compelled to use its corporate assets and funds in an effort to put out the fire, and the testimony shows that this has already been done. Under these circumstances a court of equity will not compel it to do more.

Decree reversed, injunction dissolved and bill dismissed at, cost of appellees.


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    McCabe v. Watt, Appellant
    (No. 2).

      Mines and mining — Burning coal mine — Nuisance—Surface owner— Mandatory injunction — Equity.
    Where a burning coal mine has reached the public enemy’s stage, and threatens a city within whose limits the mine is situated, the owner of the surface above the burning coal, who is in no way responsible for the fire, cannot be compelled by a mandatory injunction to take measures at his own expense to put out the fire.
    Argued Feb. 24, 1909.
    Appeal, No. 27 Jan. T., 1909, by plaintiffs, from decree of C. P. Lackawanna Co., March T., 1908, No. 10, dismissing bill in equity in case of John McCabe et al. and City of Carbondale v. W. W. Watt and The Finn Company.
    Before Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for mandatory injunction.

      March 29, 1909:
    The facts appear by the opinion of the Supreme Court, and by the report of the previous case.
    The court entered a decree dismissing the bill as to W. W. Watt.

      Error assigned was the decree of the court.

      A. A. Vosburg and I. H. Burns, with them R. D. Stuart, Gramer & Norton and C. W. Dawson, for appellant. —
    Mandatory injunctions should be granted where it is plain that a nuisance is being maintained, to compel the abatement of the same, and we were therefore entitled to this relief: Cole Silver Mining Co. v. Water Co., 1 Sawy. 470; Strelley v. Pearson, L. R. 15 Ch. Div. 113; New York v. Cunard S. S. Co., 61 Hun, 346; Brauns v. Glesige, 130 Ind. 167 (29 N. E. Repr. 1061); Central Trust Co. v. Moran, 29 L. R. A. 212; Whiteman v. Fuel Gas Co., 139 Pa. 492; Troe v. Larson, 84 Iowa, 649 (51 N. W. Repr. 179); Bradfield v. Dewell, 48 Mich. 9 (11 N. W. Repr. 760); Pine City v. Munch, 6 L. R. A. 763; Carleton v. Rugg, 149 Mass. 550 (22 N. E. Repr. 55); Bailey v. Dale, 71 Cal. 34 (11 Pac. Repr. 804); San Benito County v. Whitesides, 51 Cal. 416.

      H. A. Knapp, of Willard, Warren & Knapp, with him, O’Brien & Kelly, for appellees,
    cited: Knauss v. Brua, 107 Pa. 85; Somers’s App., 6 W. N. C. 441; Sitzman v. Heikel, 10 Pa. Dist. Rep. 673; Ditchett v. R. R. Co., 67 N. Y. 425; Conhocton Stone Road v. Buffalo, etc., R. R. Co., 51 N. Y. 573; Ahern v. Steele, 115 N. Y. 203 (22 N. E. Repr. 193).
   Opinion by

Mr. Justice Elkin,

What was said in the opinion filed in the appeal of The Finn Coal Company, ante, p. 253, applies generally to this case. In addition it may be said that the appellee, Watt, is not at fault. He did not start the fire and is in no way responsible for its burning. He, an owner of the surface, in common with other adjacent owners of the soil, may and no doubt will, suffer great loss on account of the burning coal stratum. But what has he done or left undone to be subjected to the burdens imposed by a mandatory injunction? Nothing. No one would seriously contend that a mandatory injunction should be issued, against an adjacent owner under the circumstances of this case, and we do not see why a distinction should be made and a different rule applied as to the owner of the superincumbent strata who is without fault and owes no duty to appellants except that in the use and enjoyment of his own property he must not willfully and wantonly do injury to his neighbors. There is nothing in this proceeding to bring appellee within the rule of willful and wanton negligence, nor is there anything to sustain a writ of mandatory injunction against him. If the lives and property of the citizens of Carbondale are menaced by the burning coal mine and the efforts of the owner are unavailing to extinguish the fire, the municipality should take hold of the situation with a strong hand and abate the so-called nuisance just as it would stop the flames of a surface conflagration. The right to protect in such an emergency is not limited by the location of the destructive agency, and the power of the municipality to act is the same whether the fire is in the cellar, or upon the roof, or above or below the surface of the ground. This fire has reached the public enemy stage, and it should be so regarded and treated by the public authorities. To hold that a state or county or other municipal division, each or all of them, cannot provide protection to the lives and property of citizens threatened with destruction by fire, would be to place the seal of impotency on governmental functions and to deny that protection the law should afford an enlightened people. To fiddle on broken strings while Rome is burning is not in keeping with the spirit and purpose of the present generation.

Appeal dismissed at cost of appellants.


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    Kutz v. Nolan, Appellant,

      Trusts and trustees — Irrevocable deed of trust — Attem/pt to defeat trust — Judgments—Execution—Premature attachment — Execution.
    Where a cestui que trust in an irrevocable deed of trust gives a judgment note as security for a loan, and the person making the loan knowing that it is a mere device to defeat the trust enters up the judgment and issues execution the day before the maturity of the note, the issuance of the attachment execution against the trustee is premature, and is such an irregularity as cannot be waived by the acquiescence of the defendant in the judgment. In such a case the trustee must act in good faith to the cestui que trust, and by using the information in his possession contest every inch of ground to prevent a recovery by the attaching creditor. If he fails to do so he will be liable in damages.
    Argued March 1, 1909.
    Appeal, No. 334, Jan. T., 1908, by defendant, from order of C. P. Berks Co., Aug. T., 1908, No. 133, making absolute rule for judgment against garnishee on answer in case of Ira G, Kutz v. Maria L. Nolan and The Beading Trust Company, Garnishee.
    Before Fell, Brown, Mestrezat, Potter and Stewart, JJ.
    Reversed.
    Rule for judgment against garnishee. Before Endlich, J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was order making absolute rule for judgment.

      Isaac Hiester, for appellant. —
    An irrevocable voluntary spendthrift deed of trust cannot be revoked by a collusive judgment and attachment execution confessed and issued with that intent, whether the amount for which the judgment was given was advanced by, the plaintiff or not: Ashhurst’s App., 77 Pa. 464; Nolan v. Nolan, 218 Pa. 135; Patrick v. Bingaman, 2 Pa. Superior Ct. 113; Zerbe v. Miller, 16 Pa. 488; Covanhovan v. Hart, 21 Pa. 495; Renninger v. Spatz, 128 Pa. 524; Bunn v. Ahl, 29 Pa. 387; Fidelity Trust Co. v. New York Finance Co., 12 Pa. Dist. Rep. 684.

      March 29, 1909:
    Where the garnishee objects and the record shows that the attachment execution was based on a debt not due, the plaintiff is not entitled to judgment: Stoner v. Com., 16 Pa. 387; Schempp v. Fry, 165 Pa. 510; Scottish Rite, etc., Aid Assn. v. Trust Co., 195 Pa. 45; Skidmore v. Bradford, 4 Pa. 296; Baldy v. Brady 15 Pa. 103; Bank of Northern Liberties v. Munford, 3 Grant, 232; Wheeler Bros. v. Phillips, 140 Pa. 33.

      Joseph R. Dickinson, with him Ira G. Kutz, for appellee,
    cited: Bank of Northern Liberties v. Muiiford, 3 Grant, 232; Mead v. Conroe, 113 Pa. 220; Sloan v. Johnson, 20 Pa. Superior Ct. 643; Morrison v. Baker, 9 Pa. Superior Ct. 637.
   Opinion by

Mr. Justice Mestrezat,

Apparently recognizing the strength of man’s spendthrift nature and his weakness in resisting his inclination to dissipate his material wealth, this court, more than three-quarters of a century ago, held that he might legally protect himself from his own improvidence by a declaration of trust. Every day’s experience confirms the wisdom as well as the necessity of this ruling which has been uniformly adhered to until the present time. Our law favors such a provision for the protection of estates, and has constructed no Appian Way strewn with roses over which the cestui que trust and a confederate may travel in defeating it.

Maria Louisa Nolan, whose estate is the subject of this contest, executed an irrevocable deed of trust in 1904 “for the purpose,” as she declares therein, “of preserving the property and estate of the said Maria Louisa Nolan for her proper support and maintenance.” The trustee was The Reading Trust Company, the duration of the trust was ten years, and the duties of the trustee were to retain the securities, and collect the dividends, interest and profits accruing thereon; and, after deducting therefrom the ’costs incident to the execution of the trust, to apply all of the proceeds in monthly installments, to the support and maintenance of the cestui que trust. The estate was not to be subject in any manner to the control, engagements, debts or liabilities of the cestui que trust. She was authorized during the continuance of the trust to dispose of the estate by will, or if she died intestate during that time, the estate was to vest in the parties entitled under the intestate laws of this state. This trust was valid and enforceable against every person except a bona fide creditor of the cestui que trust.

At the time of the execution of the deed, it appears that Miss Nolan was young in years but of mature mind and capable of fully comprehending the effect of her action. It is not alleged that the deed was not voluntary or was procured by fraud, imposition or duress. In less than five months after its execution, however, she apparently changed her views as to the propriety and necessity of “preserving the property and estate” which she had placed in trust, and made a demand of the trustee that it redeliver a portion of the estate to her. The trust being in terms irrevocable, the trustee, conscious of its duty in the premises, declined to accede to the wishes of the cestui que trust, and continued to retain possession of the estate and to exercise its duties in conformity with the trust deed. The next attempt by the discontented cestui que trust to defeat the trust was made in 1907, when she gave a note authorizing the entry of a judgment for $1,000, payable in one day after date to her brother who was without property or means. The judgment was entered about two months after the note was given, and an attachment execution was issued thereon and the Reading Trust Company, the trustee, was made garnishee. The answer of the garnishee averred that the proceeding was a collusive attempt to defeat the trust, and the court refused judgment against thé garnishee as to the corpus of the estate and sent the case to a jury.

The next attack on the trust by the cestui que trust was the present proceeding. On July 23, 1908, she gave a judgment note for $2,000 payable one day after date to Ira G. Kutz, the plaintiff, a member of the Reading bar and presumably competent to ascertain prior to making the loan the source from which the note must be paid. Manifestly the motive inducing the payee to make the loan was not to procure an investment or the interest which would accrue thereon. Neither could the loan have been prompted by a desire on the part of the creditor to secure the attorney’s commissions for collection, because their recovery is simply to reimburse the plaintiff for what he was compelled to pay his attorney: McAllister’s Appeal, 59 Pa. 204. Mr. Kutz entered judgment the day after the note was given and before its maturity, and issued thereon an attachment execution in which The Reading Trust Company was made garnishee. Upon the facts set up in its answer the garnishee alleged that the proceeding was collusive and instituted with an intent to defeat the trust; also, that the attachment was prematurely issued. The court below held that the answer did not show facts disclosing collusion, apparently thinking that if the plaintiff gave a consideration his intention in -taking the note, though to defeat the trust, was immaterial. We need not and do not now rule this question, as it is unnecessary in view of the fact that judgment should have been refused because of the premature issuance of the attachment.

It is conceded that the attachment execution was issued before the maturity of the judgment; but the learned court below held that this was simply an irregularity and could be waived by the acquiescence of the defendant. In this there is reversible error. In this position, the' court fails to discriminate between the rights and duties of an ordinary garnishee in an attachment execution and those of a garnishee who is a trustee under an irrevocable deed of trust. Even in the case of an ordinary garnishee, if he wishes to relieve himself of liability for the funds attached in his hands, he must act in good faith to the debtor, and by using the information in his possession, contest every inch of ground to prevent a recovery of judgment by the attaching creditor: Scottish Rite., etc., Aid Assn. v. Union Trust Co., 195 Pa. 45. He must see that the proceedings are regular and that the judgment against him has been regularly and duly obtained.

A garnishee who is a trustee under a valid deed of trust is not a mere stakeholder, nor simply a debtor or one who has in his possession the property of the defendant. He has possession of the property by virtue of his legal title thereto. He is charged with active duties with regard to it and is responsible not only to the defendant, but to the other beneficiaries named in the deed of trust. It is, therefore, incumbent upon him to preserve and protect the property for all the beneficiaries, and to administer it strictly in compliance with the terms of the trust. Failing to perform this duty he is liable for any injury sustained by any person beneficially interested. The cestui que trust cannot revoke the trust nor withdraw the estate from the hands of the trustee contrary to the provisions of his deed. A bona fide creditor of the cestui que trust, enforcing payment of a valid judgment, may subject the trust estate to the payment of his debt; but this he can only do by due process of law. If the trustee fail to compel the creditor to proceed in a regular and legal way to enforce his claim against the estate, he is liable to the interested parties who have been injured by his negligent conduct. The failure of the trustee in this respect subjects him to the same consequences as if he permit the estate to be dissipated or lost in any other illegal way or by any other illegal means. Nor will the consent or acquiescence of the cestui que trust or defendant in the judgment relieve the trustee from the performance of his duty to protect the trust estate against the irregular or illegal acts of an execution creditor. The cestui que trust in this case has no interest in or control over the trust estate, except to receive the income as provided in the deed, and the power of appointment by will. She is without authority to revoke the trust either directly or by consenting to an act which will indirectly defeat it. The issuing of the attachment before the maturity of the judgment was manifestly irregular and without authority of law, and the cestui que trust cannot waive such irregularity and thereby relieve the trustee from liability in failing to resist the. attachment of the funds in his possession under the illegal process. There are other interests than those of the cestui que trust in the fund attached which are affected by enforcement of the attachment execution, and it is the duty of the trustee to protect those interests and not permit them to suffer by. reason of any action of the cestui que trust. The learned judge erred in holding that the premature issuance of the attachment execution was an irregularity which could be waived by the defendant.

. It may be, as suggested by the appellee, that the answer of the trustee does not sufficiently aver the facts upon which it relied to show collusion between the plaintiff and the defendant. It is not sufficient in an answer simply to demand an inquiry whether the judgment and execution are a collusive proceeding. The facts should bé stated, and upon them the respondent should aver that he believes that the conduct of the parties is collusive. It is then the duty of the court without the request of the garnishee, if the facts averred be sufficient, to have the question of collusion determined by a jury. If this question of pleading should become important the answer of the defendant can be amended so as to meet the objection suggested by the appellee.

The judgment of the court below is reversed with a procedendo.