text:
    582 A.2d 1119
    COMMONWEALTH of Pennsylvania v. Frank Earl SENK, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 17, 1990.
    Filed Dec. 4, 1990.

      Frank Earl Senk, pro se.
    Andrea F. McKenna, Deputy Atty. Gen., Harrisburg, for Com., appellee.
    Before OLSZEWSKI, KELLY and BROSKY, JJ.
   OLSZEWSKI, Judge:

This is an appeal from an order of the Court of Common Pleas of Columbia County dismissing appellant’s fourth petition seeking post-conviction relief. Appellant’s fourth petition was filed pro se. In it, appellant alleges ineffective assistance of counsel on his third petition seeking post-conviction relief, claiming that counsel failed to specifically seek the retroactive application of Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), to the jury instruction in question. The trial court dismissed the fourth petition upon finding that the issue had been raised and litigated in appellant’s third post-conviction petition and that the fourth petition raised no new issues of law. We agree and affirm the order of the trial court.

Appellant was convicted of first-degree murder on April 4, 1962, and sentenced to death. The judgment of sentence was affirmed by our Supreme Court in Commonwealth v. Senk, 412 Pa. 184, 194 A.2d 221 (1963).

Certiorari was granted by the United States Supreme Court and, in Senk v. Pennsylvania, 378 U.S. 562, 84 S.Ct. 1928, 12 L.Ed.2d 1039 (1964), the case was remanded for further proceedings on the question of the voluntariness of appellant’s confession in accordance with Jackson v. Den-no, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). On remand, the trial court determined that appellant’s confession was voluntary under the Jackson-Denno standard. Our Supreme Court affirmed the trial court. Commonwealth v. Senk, 423 Pa. 129, 223 A.2d 97 (1964), cert. denied, 387 U.S. 914, 87 S.Ct. 1694, 18 L.Ed.2d 638 (1967).

After numerous subsequent collateral attacks and appeals over the last 28 years, appellant’s conviction remains intact. As stated, the present appeal is from the trial court’s dismissal of appellant’s fourth post-conviction relief petition.

Appellant first contends that he was denied effective assistance of counsel on his third petition under the Post-Conviction Hearing Act (PCHA), 42 Pa.C.S. §§ 9541-9551 (Purdon 1982) (repealed 1988). Appellant alleges that counsel was ineffective for failing to seek the retroactive application of Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979) to an alleged unconstitutional jury instruction. We reject appellant’s claim.

To be eligible for relief under the Post-Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq., the petitioner must plead and prove by a preponderance of the evidence, inter alia, that the allegation of error has not been previously litigated. 42 Pa.C.S. § 9543(a)(3). Section 9544(a)(3) provides that an issue has been previously litigated if it has been raised and decided in a proceeding collaterally attacking the conviction or sentence.

As the trial court has indicated in its order which is the subject of this appeal, the issue of the retroactive application of Sandstrom, v. Montana was previously litigated by appellant’s counsel on his third petition for post-conviction relief and on appeal of its dismissal. Upon review of the record, we find this to be true and the lower court’s order thus supported. Therefore, appellant cannot relitigate this same issue in a subsequent petition.

Additionally, the fact that this is an appeal from the dismissal of appellant’s fourth petition for post-conviction relief must be addressed.. Our Supreme Court in Commonwealth v. Lawson, 519 Pa. 504, 549 A.2d 107, (1988) held, in the context of the PCHA:

We therefore conclude that a second or any subsequent post-conviction request for relief will not be entertained unless a strong prima facie showing is offered to demonstrate that a miscarriage of justice may have occurred.

Id. 549 A.2d at 112.

In Commonwealth v. Blackwell, 384 Pa.Super. 251, 558 A.2d 107 (1989), we applied the Lawson standard to petitions filed under the PCRA. Therefore, applying this standard to the facts of the present case, we find appellant’s fourth petition to have been properly denied. Appellant’s fourth petition asserts the ineffective assistance of counsel on his third petition for failing to raise the retroactive application of the Sandstrom case. This claim is without merit because, as discussed above, appellant’s counsel on the third petition did litigate that issue. Therefore, appellant’s claim of ineffective assistance of counsel is factually inaccurate. Accordingly, as appellant’s claim with respect to the Sandstrom case was actually litigated, no miscarriage of justice could have occurred which would now warrant the entertainment of appellant’s fourth application for post-conviction relief.

Appellant also argues that he was denied due process at trial and now argues that Sandstrom should be applied retroactively to remedy the violation. We find this issue to have been waived. The Post Conviction Relief Act provides that an issue is waived “if the petitioner failed to raise it and if it could have been raised before the trial, at the trial, on appeal, in a habeas corpus proceeding or other proceeding actually conducted or in a prior proceeding actually initiated under this subchapter.” 42 Pa.C.S. § 9544(b). Because appellant has never raised this issue until now, we hold that it has been waived.

Accordingly, the order of the trial court denying appellant’s fourth post-conviction relief petition is affirmed.

      . Our Supreme Court subsequently vacated the death sentence and imposed a sentence of life imprisonment. Commonwealth v. Senk, 449 Pa. 626, 296 A.2d 526 (1972). The sentence of death was vacated in conformance with Commonwealth v. Bradley, 449 Pa. 19, 295 A.2d 842 (1972), wherein the death penalty statute, 18 P.S. § 4701, was held unconstitutional.

      . Appellant’s fourth petition was filed pro se under the Post-Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq.

      . The retroactive application of Sandstrom in terms of a Sixth Amendment violation was an issue raised in both appellant’s third PCHA petition and third federal petition for a writ of habeas corpus. Appellant calls our attention to Senk v. Zimmerman, 886 F.2d 611, 615 n. 5 (3d Cir.1989) in support of his allegation that the retroactive application of Sandstrom has never been argued. Appellant’s examination of the Third Circuit opinion is flawed, however, because the Third Circuit observed only that the appellant has never argued that Sandstrom should be applied retroactively to remedy a due process violation. Accordingly, the Third Circuit was confined to considering the retroactive application of Sandstrom in terms of a Sixth Amendment violation, as appellant had previously litigated that issue.

      . 42 Pa.C.S. § 9543(a)(2)(ii) requires that a petitioner seeking relief on a claim of ineffective assistance of counsel must plead and prove that counsel’s stewardship "so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.” Because appellant’s claim of ineffective assistance of counsel is factually erroneous, we find no occasion to pursue that claim any further.


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    582 A.2d 1122
    In re Dale KERSTETTER. Appeal of Wendy KERSTETTER.
    Superior Court of Pennsylvania.
    Argued Oct. 18, 1990.
    Filed Dec. 4, 1990.

      James N. Bryant, Millheim, for appellant.
    William J. Kubiak, Bradford, for Corning, participating party.
    Before ROWLEY, WIEAND and HUDOCK, JJ.
   WIEAND, Judge:

This appeal is from an order dismissing a petition to declare Dale Kerstetter dead.

On September 12, 1987, Kerstetter was employed as a security guard by Corning, Inc. and was assigned to work the 11:00 p.m. to 7:00 a.m. shift. Between midnight and 1:00 a.m., while Kerstetter was the only guard on duty, video cameras in operation at the plant recorded that an unidentified, masked man entered the plant and was approached by Kerstetter. The two men met in a corridor, where they spoke for a short time. Another camera later recorded an unidentified man entering the platinum area. The next day, Kerstetter was reported missing. Several days later it was discovered that platinum having a value of $250,000.00 was also missing. Investigation disclosed no sign of forced entry, and there was no evidence that a struggle had occurred. Kerstetter’s gun was found to be missing from its holster, which was in Kerstetter’s truck in the parking lot. However, there was no evidence that any gun had been fired. The amount of platinum removed from the plant was such that it could have been carried easily by one person. The disappearance of the platinum and also of Kerstetter are the subjects of continuing investigations by the Bradford Township Police, the Pennsylvania State Police and the Federal Bureau of Investigation. Kerstetter has not been seen or heard from since September 13, 1987.

A petition to have Kerstetter declared dead was filed by Wendy Kerstetter, one of his six children, in order, that a minor son might receive his father’s pension and life insurance benefits as well as workmen’s compensation payments. Corning, Inc., the employer, was permitted to intervene in order to assert its contention that Kerstetter had been a participant in the theft of the platinum. Evidence showed that Kerstetter had been experiencing financial difficulties at the time of the theft.

The trial court determined that the petitioner had failed to prove by a fair preponderance of the evidence that her father had met with a specific, life-threatening peril and, because less than seven (7) years had elapsed following his disappearance, dismissed the petition. The petitioner filed exceptions, but these were denied. This appeal followed.

Exceptions, or more properly a motion for post-trial relief, were properly filed. The statute, at 20 Pa.C.S. § 5701(a), permits the court of the county in which the missing person resided to decree his or her death “upon the petition of any party in interest.” Pursuant to 20 Pa.C.S. § 711(11), the instant petition was filed in the Orphans’ Court Division of the Court of Common Pleas of McKean County. The Orphans’ Court, however, transferred the petition to the civil division, where a contested hearing was held. See: Maley v. Pennsylvania R.R. Co,, 258 Pa. 73, 101 A. 911 (1917) (common pleas court has jurisdiction over the determination of the fact of death by reason of absence where the object is not to distribute an estate). See also: Locke v. Duff, 1 Pa.D & C.2d 121 (Wash., 1955) (same); Hunter, Pennsylvania Orphans’ Court Commonplace Book, Absentees and Presumed Decedents, § 1 (Rights of beneficiaries of life insurance, etc. are determined by common pleas court). The note to Pa.R.C.P. 227.1(c) suggests that a “motion for post-trial relief may not be filed to matters governed exclusively by the rules of petition practice.” The instant proceedings, however, were not, strictly speaking, governed exclusively by rules of petition practice. Rather, the instant proceedings were governed by rules applicable to non-jury trials. The petition served merely to bring before the court an entirely new and separate action for relief, which the Orphans’ Court division transferred to the civil division, where it was heard in the same manner as other non-jury matters. We conclude, therefore, that the post-trial procedure followed by appellant was appropriate. Appellant’s right of appeal was not lost by her failure to file an immediate appeal from the court’s initial order. See: McNulty v. General American Life Ins. Co., 153 Pa.Super. 288, 33 A.2d 796 (1943) (following non-jury trial, motion for judgment on whole record dismissed and appeal taken from judgment entered on finding of presumed death from seven (7) year unexplained absence); Ryan v. Prudential Ins. Co. of America, 135 Pa.Super. 166, 4 A.2d 812 (1939) (following non-jury trial, motion for j.n.o.v. denied and appeal taken from judgment entered on finding of presumed death).

A decree that a missing person is dead is authorized by 20 Pa.C.S. § 5701. The circumstances permitting such a decree are recited in subsections (b) and (c) as follows:

(b) Presumption from absence.—When the death of a person or the date thereof is in issue, his unexplained absence from his last known place of residence and the fact that he has been unheard of for seven years may be a sufficient ground for finding that he died seven years after he was last heard of.
(c) Exposure to specific peril.—The fact that an absentee was exposed to a specific peril of death may be sufficient ground for finding that he died less than seven years after he was last heard of.

In the instant case, it is clear that seven years have not elapsed since Kerstetter disappeared without explanation. During the period following his disappearance, therefore, there continues a presumption of life. See: Groner v. Knights of Maccabees, 265 Pa. 129, 133, 108 A. 437, 438 (1919); Young v. Sweigart, 69 Pa.Super. 525, 528 (1918). The burden of showing that Kerstetter had been exposed to an earlier peril of death was on the petitioner. Herold v. Washington National Ins. Co., 128 Pa.Super. 563, 194 A. 687 (1937). See also: Sherman v. Minnesota Mutual Life Insurance Co., 191 Minn. 607, 255 N.W. 113 (1934). This required proof by a fair preponderance of the evidence that the absent person had been exposed to a specific peril of death. “To accelerate the presumption from time, or more properly to turn it from an artificial into a natural one, it is necessary to bring the person within the range of a particular and immediate danger.” Fanning, Adm’x. v. Equitable Life Assurance Society, 264 Pa. 333, 338, 107 A. 715, 716 (1919), quoting Burr v. Sim, 4 Whart. 150, 171 (1839). In the absence of evidence from which the occurrence of death on a specific date can be inferred, the presumption of life must prevail.

In the instant case, the trial court which heard the case found that the evidence was insufficient to permit a determination that Kerstetter had been killed during a theft of platinum on September 13, 1987. This finding is consistent with applicable legal principles and does not suggest an abuse of discretion. Appellant’s evidence was not so weighty that it could be said with confidence that Dale Kerstetter died on September 13, 1987. There was no evidence that a shooting had occurred or even that firearms had been involved in the theft of the platinum. There also was no evidence that a struggle of any kind had occurred. Kerstetter’s role in the theft, if any, was unknown and was still under active investigation by police agencies. The mere fact that platinum appeared to have been stolen and that a masked person appeared on videotape and spoke with Kerstetter on September 13, 1987 did not alone suggest a specific peril likely to cause death. Indeed, the evidence can as readily be interpreted as creating an inference that (1) Kerstetter disappeared voluntarily after having cooperated with an unknown intruder who removed the platinum or (2) that he was abducted by the intruder and is still alive. These circumstances are not at all comparable to those in cases where death was declared because of a specific peril. See: Continental Life Ins. Co. v. Searing, 240 F. 653 (3rd Cir.1917) (drowning in surf); Fanning, Adm’x. v. Equitable Life Assurance Society, supra (firefighter fighting raging forest fire); Herold v. Washington National Life Ins. Co., supra (drowning in ocean); Silverstein Estate, 64 Pa.D. & C. 174 (Phila., 1948) (pilot shot down in World War II); Meadville Production Credit Ass’n. v. Haskell, 40 D. & C. 145 (Erie, 1939) (suicide notes followed by disappearance at Niagara Falls); Wheelock Estate, 5 Fid. Rep. 553 (Montg., 1955) (death at sea during “severe storm of hurricane proportions”); York Estate, 3 Fid.Rep. 1 (Lehigh, 1952) (disappearance of small plane in violent storm of hurricane proportions); Hill Trust, 1 Fid.Rep. 606 (Montg., 1951) (civilian victim of bombing); Kleinhofer Estate, 1 Fid. Rep. 389 (Montg., 1951) (pilot shot down in World War II).

The circumstances shown by the evidence in this case fully support the trial court’s decision. Appellant failed to prove a specific peril of death sufficient to overcome the presumption of life which continued during the two and one-half year period between Kerstetter’s disappearance and the trial court’s decision.

Order affirmed.


text:
    582 A.2d 1125
    In re ESTATE OF Mary McFarland CAVALIER, a/d Mary McF Cavalier, a/d Mary M. Cavalier, Deceased. Appeal of Mary Ann WILLIAMS.
    Superior Court of Pennsylvania.
    Argued Oct. 16, 1990.
    Filed Dec. 4, 1990.

      Stuart J. Horner, Jr., Greensburg, for appellant.
    B. Patrick Costello, Greensburg, for appellee.
    Before ROWLEY, WIEAND and HUDOCK, JJ.
   WIEAND, Judge:

Mary Ann Williams filed in the Orphans’ Court of Westmoreland County a petition which, in three separate counts, attempted to state causes of action against Union National Bank of Pittsburgh (the Bank) in its capacities as (1) executor of the Estate of Mary McFarland Cavalier, deceased; (2) trustee under the will of Marion A. Cavalier, deceased; and (3) executor under the will of Marion A. Cavalier, deceased. Because the Bank had never acted as executor or trustee of the Estate of Marion A. Cavalier, deceased, the Orphans’ Court sustained preliminary objections in the nature of a demurrer to counts two and three. Williams appealed.

The order sustaining preliminary objections in the nature of a demurrer to counts two and three of the petition is final and appealable. By its order, the court adjudicated finally and put appellant out of court on all claims asserted against the Bank for its handling of or refusal to handle the Estate of Marion A. Cavalier, deceased. The remaining claim is against the Estate of Mary McFarland Cavalier for the alleged mishandling, during the decedent’s lifetime, of an interest owned in real estate by her deceased husband. This remaining claim is not only separate from the claims adjudicated by the Orphans’ Court, but it is also against a different party. Under these circumstances, the order of the Orphans’ Court is appealable. See: United States National Bank in Johnstown v. Johnson, 506 Pa. 622, 487 A.2d 809 (1985) (order sustaining preliminary objections in nature of demurrer of party defendant and dismissing party as defendant to action terminated litigation as far as plaintiff was concerned by prohibiting it from proceeding with action against party defendant, and was, therefore, final and appealable); Cloverleaf Development, Inc. v. Horizon Financial F.A., 347 Pa.Super. 75, 500 A.2d 163 (1985) (where dismissal of one count of several counts of a multicount complaint has effect of precluding plaintiff from pursuing the merits of separate and distinct causes of action, order sustaining preliminary objections is final with respect to causes of action dismissed); Dash v. Wilap Corp., 343 Pa.Super. 584, 495 A.2d 950 (1985) (dismissal of complaint as to one defendant in multi-defendant suit is final, appealable order).

Marion A. Cavalier died testate on January 12, 1961. By the terms of his will he created a trust for and during the life of his wife, Mary McFarland Cavalier, with the remainder to be distributed upon her death to Mary Ann Williams, his daughter by a prior marriage, and to two nieces of his second wife. The Bank was named as executor and trustee. Because it did not appear that there were any substantial estate assets, Cavalier’s will was not probated, and his wife paid all remaining debts. In 1973, however, it was discovered that Cavalier had died seized of a one-fourth (Vi) interest in a tract containing forty-seven (47) acres of land in Unity Township, Westmoreland County. On June 22, 1973, the Bank formally declined to act as executor of Cavalier’s estate, and, on July 20, 1973, letters of administration c.t.a. were issued to Mary McFarland Cavalier. She sold her deceased husband’s interest in a parcel of .951 acres, and the Orphans’ Court awarded to her the interest of her husband in the remaining land to reimburse her for the decedent’s debts, which she had paid. The one-fourth interest in the remaining land was sold by the widow in 1977. Therefore, the trust envisioned by Cavalier’s will never came into existence.

Mary McFarland Cavalier died in 1987, and letters testamentary were issued to the Bank. In 1989, Mary Ann Williams filed the instant petition in which she accused her stepmother and the Bank, as executor and trustee under the will of her deceased father, of negligence and/or fraud in disposing of Cavalier’s estate for inadequate consideration. This prompted the summary order from which the instant appeal has been taken. Williams contends (1) that the Bank had a duty to advise all beneficiaries under the will of Marion Cavalier, deceased, before declining to serve as executor and (2) that in the absence of a formal declination to act as trustee, the Bank had a duty, as trustee, to account to the remaindermen when Mary McFarland Cavalier died in 1987. We disagree with these contentions and affirm the order of the Orphans’ Court.

The person or institution named as executor in the will of a decedent cannot be forced to undertake the fiduciary responsibilities of such office. Unless and until the named executor consents to act and qualifies for office, neither statute nor rule of court imposes upon such person a duty to act as a fiduciary for or account to the beneficiaries named in the will. Similarly, there is no requirement that such person give prior notice of his or her intent to refuse to act as executor when such is the case. In the instant case, the Cavalier will was not probated for more than twelve (12) years following the testator’s death, and, in 1973, when it was finally offered for probate, the Bank formally declined to act as executor. As such, it cannot be held liable for alleged breaches of fiduciary duties either before or after probate of the will.

After the will had been probated and letters of administration c.t.a. had been issued to the decedent’s widow, it was she who assumed fiduciary responsibilities toward those persons who had been named as beneficiaries in the decedent’s will. The estate was thereafter settled by the administratrix c.t.a. in a manner which was approved by the Orphans’ Court. It was settled in a manner which left no assets for transfer to the testamentary trust. Therefore, the trust did not ever come into existence. Because there was no trust res, the trust did not exist, and the trustee named in the testator’s will did not ever assume the responsibilities of such office. It follows that appellant cannot by this litigation impose liability upon the Bank for violating fiduciary duties which it did not assume and which were not imposed upon it by rule of law.

If appellant was injured because of the manner in which her father’s estate was distributed, liability therefor cannot be laid at the doorstep of the Bank, which at no time assumed or otherwise acquired fiduciary responsibilities. Instead, the liability, if any, must be placed upon the fiduciary whose conduct caused the loss. This would be the administratrix c.t.a. against whom a cause of action has been stated and remains undetermined.

Order affirmed.

HUDOCK, J., did not participate in the consideration or decision of this appeal.


author: Rice, P. J.,

text:
    Commonwealth v. E. K. Smith, Appellant.

      Criminal law — Banks and banking — Receipt of deposits when insolvent.

    The three essential elements which the commonwealth must prove beyond a reasonable doubt before the jury can find a defendant banker guilty of receiving deposits when insolvent are: 1. Actual insolvency at the time the money was received; 2. Knowledge of insolvency; 3. Receipt of money as a bank deposit. Sufficient proof of these essentials warrants the submission of the question of the defendant's guilt to the jury.

      Grand jury — Special or adjourned session — Power of court to call.

    Under the Act of March 18, 1875, R. L. 28, the Quarter Sessions has authority to make an order requiring the grand jury for the August term to meet prior to the first day of that term ; and the fact that the meeting of the grand jury was coincident with a special or adjourned session did not invalidate the order nor convert such special or adjourned session into a regular term; the omission to publish the order in two newspapers thirty days prior to the meeting of the grand jury was not, standing alone, legal ground for quashing an indictment found by the grand jury at such meeting; and even if such publication was necessary to.give validity to the acts of the grand jury, it is to be presumed on appeal, in the absence of affirmative record evidence to the contrary, that the order was duly published, upon the principle, omnia prsesumuntur rite esse acta.

      Evidence — Embezzlement—Assignee's inventory as evidence of insolvency.

    The inventory of the assignee of an insolvent banker made within thirty days of the date of the assignment which was made one week after the deposit is admissible in evidence on the trial of the assignor, a banker, who had been indicted for receiving money on deposit as a banker, when insolvent, knowing himself to be so.
    Such inventory is not conclusive, but it is a necessary step in the proceedings and tends to show the assets in the hands of the assignee for the paj'ment of debts.

      Evidence — Limitations on re-examination of witness — Discretion of court.

    The extent to which a party will be permitted to re-examine his own witnesses is a matter largely within the discretion of the trial judge. While the see-sawing method of examination, is not to be approved of, in the absence of gross irregularity, or.abuse of discretion by the trial judge, the appellate court will not review.

      Evidence — Value of land adjoining — Time of comparison.

    Where the point in question is the value of land in 1893, evidence was properly rejected as to the sales of adjoining lands between 1880 and 1890, it was too remote in time to furnish a standard by which to measure the value of the land sold in 1893.
    Argued Nov. 10, 1896.
    Appeal, No. 89, Nov. T., 1896, by defendant, from judgment and sentence of Q. S., Lancaster County, June Sess., 1896, No. 20, on verdict of guilty.
    Before Rice, P. J., Willard, Wicki-iam, Beaver, Orlady and Smith, JJ.
    Affirmed.
    Indictment against Edward K. Smith and Christian E. Gray-bill, bankers, for receiving deposits when insolvent, knowing themselves to be insolvent.
    The complaint was made against defendants for embezzlement under the Act of May 9, 1889, P. L. 145. Graybill became a witness for the commonwealth and Smith was convicted and sentenced to imprisonment for one year and three months, to commence at the close of sentence in No. 30, June sessions, 1895, and pay a fine of $120, being double the amount received from JohnW. Paules, pay the costs of prosecution, and stand committed until the sentence be complied with.
    In the case No. 30, June sessions, 1895, a similar indictment was found on the complaint of Francis A. Reichard wherein Graybill became a witness for the commonwealth, and Smith was convicted and a motion for a new trial was overruled, and defendant sentenced to one year and three months, to pay a fine of $120, being double the amount received from F. A. Reichard, pay costs of prosecution, and stand committed until the sentence be complied with.
    The regular court of quarter sessions of Lancaster county began April 15, 1895, and during that week E. K. Smith was called for trial before Judge Brubaker. A motion was made to quasb the array of jurors because the jury commissioners had not been properly sworn. The judge thought the point well taken and refused to proceed with the trial. On Saturday of that week he ordered the grand jurors to return on the following Monday, and they did so return and found true bills against E. K. Smith and C. E. Graybill on that day, April 22, 1895. On April 24, 1895, the court made an order for venire for' twenty-four grand jurors to be drawn for the adjourned sessions of June 10, 1895, and the jurors were drawn; the court rescinded that order, and on April 27, 1895, made another order for a venire for the drawing of twenty-four grand jurors for the regular August sessions, 1895 ; the third Monday of August, the 19th day, and further ordered that the grand jurors so drawn should attend the adjourned sessions to be held June 10,1895; the grand jurors did so attend on June 10, 1895, and found the indictment upon which the defendant in this case was convicted.
    On November 27, 1894, it was ordered by the court that the terms of the court of quarter sessions of the peace shall be and remain for the year 1895 as fixed by rules of court in new book of printed rules of court, lately adopted, and now in force on page 61. And it was also ordered that adjourned courts of quarter sessions for the trial of causes by jury shall be held during the j’uar 1895, as follows : (inter alia).
    “ One week, commencing Monday, June 10, 1895.”
    Other facts are set out in the opinion of the Superior Court.
    Verdict of guilty and sentence thereon. Defendant appealed.

      Errors assigned were (1) overruling defendant’s motion to quash the indictment; (2) in overruling defendant’s point— Point: The court is respectfully requested to charge the jury that under the law and the evidence in this case there can be no conviction on this indictment, and the verdict must be, not guilty.
    Answer taken from the general charge: “We say to you, whether the defendant is guilty or not guilty will be for the jury to say from all the evidence they have heard in the case, under the law as I shall now read to you; ” (3-5) in overruling defendant’s questions in the cross-examination of Graybill, a witness for the commonwealth, which questions were as follows:

      (3.) “ Q. And did you and Mr. Smith, both of you believe that the assets of the bank and the property of E. K. Smith, individually were sufficient to pay the liabilities of the bank ?
    (4.) “ Q. Did you yourself believe at all times that the assets of the bank of E. K. Smith & Company and the individual property of E. K. Smith were sufficient to make all the liabilities of the firm of E. K. Smith & Company secure ?
    (5.) “ Q. What property did you understand Mr. Smith owned ? ”
    (6.) In admitting the following offer on the part of the commonwealth :
    By Mr. Brown: I offer in evidence, as produced by the deputy prothonotary, the records from the court of common pleas of Lancaster county, the inventory in the assigned estate of E. K. Smith and wife, filed September 14,1893, by the assignee, Michael S. Shuman, and also in the assigned estate of E. K. Smith & Company, filed on the same day. (7) In admitting the following question to George R. Boak a witness for the commonwealth:
    By the Court: ■ What, in your judgment, would that land have sold for in August, 1893, you are well acquainted there ? (8-12,14) Overruling defendant’s questions in cross-examination to George R. Boak, a Avitness for the commonwealth, concerning prices received for adjoining land sold to the L. Y. R. R. Co. and their value as compared with that of defendant’s land; (13) error in putting the following question to George R. Boak a witness for the commomvealth : “ Q. What, in your judgment, would they have sold for ? ” (15) In admitting the following question by the commonAvealth to its witness, George R. Boak: “ Q. If you were to give $10,000 for it do you mean you would become the owner of the land? A. Yes, sir.” (16) In admitting the following question: “ Q. To do Avith it as you please ? A. Yes, sir.” (17) In admitting the following question: “Q. And you wouldn’t givre more than that for it? A. No, sir.”

      N. M. North and M. Brosius, with them B. Frank Fshleman, for appellant.
    — Only two questions arise in this ease, the first one is as to the sufficiency of the proof of insolvency of the defendant, and the other is as to whether a grand jury drawn for the regular August sessions, to be held on the third Monday of August, 1895, could properly be convened at a court of quarter sessions held on the 10th of June, 1895, and find indictments, said court having been fixed by the order of the court on November 27, 1894, as one of the courts for the year 1895.
    February 16, 1897:
    As to the first question the inventory filed by the assignee of the defendant was introduced and admitted against the objection of the plaintiff.
    As to the second question, if it was proper to convene the grand jury drawn for the regular August sessions at a sessions on June 10, 1895, fixed by the court on November 27, 1894, then we have a new practice and one we did not know we had the power to establish under the act of April 18, 1875, and twenty-one years have elapsed since its passage.

      Greorge Naumctn with him W. M. Franklin, Greorge A. Lane district attorney, Brown ‡ Hensel, T. B. Holohan, O. O. Kauffman, and B. F. Davis, for the commonwealth.
   Opinion by

Rice, P. J.,

The defendant was jointly indicted with C. E. Graybill under the Act of May 9,1889 (P. L. 145), which provides as follows : “ Any banker, broker or officer of any trust or savings institution, national, state or private bank, who shall take and receive money from a depositor with the knowledge that he, they or the bank is at the time insolvent, shall be guilty of embezzlement, and shall be punished by a fine in double the amount so received, and imprisoned from one to three years in the penitentiary.” The defendant was tried separately. It appears that he and Graybill as partners conducted a banking business in the borough of Columbia from the year 1873 until the bank closed its doors on August 11, 1893. On August 17, 1893, E. K. Smith, and the banking firm of E. K. Smith & Co. made assignments for the benefit of creditors; but immediately before making these assignments the defendant confessed judgments to divers persons, amounting in the aggregate to about #70,000. The inventories are not printed, but it is stated in the paper-book of the commonwealth, and the correctness of the statement is not challenged, that the assets of the firm were inventoried at #5,850.25, and of the defendant individually, at #46,490.50. Tlie balance sheet or statement made up from the hooks just before the receipt of the deposit in question, which was the day before the bank closed its doors, showed cash on hand $505.02, and other assets amounting, nominally, to about $189,000 , and liabilities amounting to $129,182.89; but there was ample evidence given on the trial that a very large proportion of these nominal assets was worthless, and that only a comparatively insignificant portion was available to pay depositors. Without undertaking to be exact as to figures, the evidence was overwhelming, and was practically undisputed, that the banking house was hopelessly insolvent, and had been so for months, if not years. The testimony of Graybill irresistibly leads to this conclusion, and he was fully corroborated by the books of the bank and other evidence. It was also shown that the defendant was fully cognizant of the bank’s affairs and its insolvent condition.

But it appears that the defendant owned, individually, an undivided three fourths interest in a tract of land in Centre county, and the court charged the jury that the property of the individual members of the firm was liable for the firm debts, and that in the determination of the question of solvency the value of such property should be taken into consideration. This was a construction of the statute, of which the defendant, certainly, can have no just cause to complain, and does not complain. He does complain, however, of the rulings of the court in the admission and rejection of evidence relative to the value of the Centre county lands.

First, as to the admission of the inventory and appraisement filed by the assignee. The inventory was filed on September 14, 1893, within about a month after the bank was closed. The Centre county lands were appraised at $15,000, and there was no evidence that, at the time of the receipt of the deposit, they were worth any more. At the time of the trial they were unsold for want of bidders. In an action to rescind a sale of goods it appeared that the purchaser made an assignment for the benefit of creditors two months after the sale. The question was whether the purchaser was insolvent and had knowledge of it, and made representations to the seller as to his solvency which induced the sale. It was contended that there was no sufficient evidence of the purchaser’s knowledge, but the Supreme Court said, “ The purchaser’s assignment for the benefit oí creditors, the inventory of his assets and the disparity between them and his liabilities, the absence of any claim of losses or change in financial condition between the sale and the assignment, were matters from which the jury might reasonably infer that he was insolvent, and knew, or ought to have known, that he was so, when he made the purchase: ” Cooperage Co. v. Gaul, 170 Pa. 545. It is not contended that the appraisement was conclusive upon the question of value, but it was a necessary step in the proceedings which the defendant himself had instituted, and showing, as it did, the assets in the hands of the assignees for the payment of debts, it was a link in the chain of evidence to prove insolvency. Plaving been made within so short a time after the bank closed its doors, and taken in connection with the deeds of assignment, which recite that by reason of losses and misfortunes the assignors were unable to pay their debts, we cannot say that it was wholly inadmissible as against the defendant. We may remark further, that the admission of the inventory was quite as important for the defendant as for the commonwealth; for without it there would have been no definite and satisfactory evidence of the quantity of real estate owned by the defendant at the time of the assignment. The sixth assignment of error is overruled.

The eighth, ninth, tenth, eleventh, twelfth and fourteenth assignments may be considered together. They relate to the rejection of questions asked upon cross-examination of Géo. Boak, a witness for the commonwealth, concerning the price received for adjoining lands sold to the L. V. R. R. Co., and their value, as compared with that of the defendant’s lands. Notwithstanding the rulings of the court now complained of, the defendant succeeded in obtaining from the witness an admission that, in 1893, the defendant’s lands were as valuable per acre as those of the L. V. Co., but it also appeared that the sale to that company was made between 1880 and 1890. It needs no argument to show that the court committed no error in rejecting evidence of the price received at that sale. It was too remote in time to furnish a standard by which to measure the value of the defendant’s lands in 1893 or thereabouts. These assignments are overruled.

The questions asked by the court, specified in the seventh and thirteenth assignments of error, were entirely proper. The witness had testified that he was a lumberman and familiar with the selling price of land in that vicinity, and was very familiar with these lands. His preliminary examination clearly showed him to be a competent witness under the rules laid down in Galbraith v. Philadelphia Co., 2 Pa. Superior Ct. 359, and Orr v. Gas Co., 2 Pa. Superior Ct. 401, and the cases there cited.

Nor, viewing as a whole the examination and cross-examination of the witness, was there clear error in the rulings complained of in the fifteenth, sixteenth and seventeenth assignments. The object of these questions was to obtain from the witness a definite answer as to what he included in his estimate. They were in the same line as that pursued in the cross-examination. The extent to which a party will be permitted to re-examine his own witness is a matter largely within the discretion of the trial judge. The manner in which this witness was examined on both sides resulted in eliciting from him confused, and, in some instances, apparently contradictory answers. But the weight to be attached to his testimony was a question for the jury. While we do not approve the seesawing method of examination, we discover no such gross irregularity, or abuse of discretion by the trial judge, as would justify a reversal of the judgment. Even if the land was worth several times the value which the witness put on it, still the defendant would have been an absolutely insolvent man.

In Com’th v. Junkin, 170 Pa. 194, it was said by Mr. Justice Dean : “ There are three essential elements, which the commonwealth must prove beyond a reasonable doubt before the jury can find the guilt which the act makes punishable: 1. Actual' insolvency at the time the money is received. 2. Knowledge of the insolvency. 3. The receipt of the money as a bank deposit.” We are of opinion that the commonwealth furnished sufficient proof of all these essentials to warrant the submission of the question of the defendant’s guilt to the jury.

The first assignment of error relates to the order of court of April 27, 1895, directing the grand jury for August sessions to meet on June 10, 1895.

The validity of this order, and of indictments found by the grand jury which was summoned and met pursuant thereto, depends upon the construction of the Act of March 18, 1875, P. L. 28. The first section authorizes the judges to fix the terms of courts and the times for holding the same, and directs that such order and all modifications or changes thereof shall be published “ at least thirty days before the time so fixed for the talcing effect of said order.” Section 2 reads as follows : “ It shall be lawful for the said judges, whenever the times for holding the terms of the courts of oyer and terminer, and courts of quarter sessions of the peace have been established as aforesaid, to direct that the grand jury for any of the said terms shall be summoned, in the same manner as required under existing laws, to meet at such time prior to the holding of said term as the judges of the said courts shall deem expedient; and if, in the opinion of the said judges, the business of the said court at any time shall require it, the grand jury may be detained for an additional week, without the issuing of a new venire, and the attendance of prosecutors and witnesses may be enforced, during such additional week, by all proper orders and process.” The third section provides that constables, aldermen and justices of the peace shall make all such returns, as they are required to make, on the day fixed as aforesaid for the meeting of the grand jury.

There is nothing in the act to sustain the contention that, if the grand jury are directed to meet before the regular term, it must be the week before, so as to make a continuous session. The language of the act is, “ at such time prior to the holding of said term as the judges of the said courts shall deem expedient.” It is left to the discretion of the judges; and the practice in many of the counties of the state is to have the grand jury meet more than a week prior to the first day of the term, so as to allow an interval after the completion of their labors within which the district attorney may prepare a trial list for the regular term. Indeed, this was found to be so necessary in counties where there is a large volume of criminal business that it had very much to do with the passage of the act. Expense is saved, and the convenience of defendants, prosecutors and witnesses, is served thereby.

Whether or not, under the power to detain the grand jury for an additional week, the court may direct them to reconvene at a later time than the next succeeding week, is a question which does not arise in this case. Its decision either way would not affect the defendant. The indictments against him were found, at the first meeting of the grand jury, and, so far as his rights are concerned, it is immaterial whether the subsequent meeting was regular or irregular.

It is argued that the court had not authority to appoint a special or adjourned session and summon a grand jury therefor. We are of opinion that this is a correct construction of the several statutes authorizing the court to appoint special or adjourned sessions. Prior to the act of April 22, 1850, there was no authority to appoint such sessions for the transaction of business requiring the intervention of a grand or petit jury: Mills v. Com'th, 13 Pa. 627. The last mentioned act and the local act of 1852 authorized the court to fix adjourned or special sessions for the trial of issues pending, and by implication the authority to summon a grand jury for such sessions was excluded. But it by no means follows that the grand jury for a succeeding term may not lawfully be directed to meet at the same time that the court is holding a special or adjourned session for the trial of indictments found at preceding terms. If the court had authority to direct the grand jury for August term to meet on June 10th, the fact that the meeting coincided with a special or adjourned session did not render the order invalid. Its functions were to return indictments triable at the regular August term. The court must of necessity be in session to receive the returns, and the fact that it was at the same time engaged in the trial of indictments found by preceding grand juries does not affect the validity of the indictments against the defendant. If the court had undertaken to try those indictments prior to the regular term, a different question would be presented.

The general rule of the court below, that grand juries should meet on the first day of the term, was unnecessary; it was a mere repetition of what the law would have required if the rule of court had not been adopted. The case is precisely the same as if the rule were silent as to the time of the meetings of the grand juries for the several terms. The fact that when the rule was framed the judges were of opinion that there was no occasion for the exercise of the power conferred by the 2d section of the act, was no reason why they should not exercise that power when, in their discretion, a proper occasion did arise.

At first glance it might seem that, in conferring this discretionary power upon the court, the legislature contemplated only a general order fixing a regular time for the meeting of the grand jury for each term. Upon a more careful reading of the section, however, it will be seen that it does not necessarily require that construction. The power given is “ to direct that the grand jury for any of the said terms shall be summoned .... to meet at such time prior to the holding of said terms as the judges of the said courts shall deem expedient.” There are many counties in the state where, ordinarily, it would not be necessary nor expedient to have the grand jury meet prior to the regular term, but where special circumstances might arise making it desirable that the grand jury for a particular term should be so convened. In the opinion of the court below there was a necessity for the grand jury to meet before the first day of the term, in order to prevent a failure of public justice, and the bill was sent before them by the permission of the court. The whole question turns, therefore, upon the construction of the statute. Its language seems to confer the power claimed by the court below, and no sufficient reasons are shown for not giving to the language its plain and ordinary meaning. The power to direct the grand jury to meet prior to the first day of a particular term is placed where it is not likely to be exercised, except where there is a real public emergency therefor, and it is not apparent that it was abused in the present instance.

But it is argued that the order of April 27 was a modification or change of the order or rule of court fixing the number of the regular terms, and establishing the time for holding the same, and should have been published at least thirty days before the time so fixed for the taking effect of the order.

The question as to the power of the court to make the order' fairly arises upon the record proper, but the question as to the invaliditjr of the order, because it was not published, involves matters of fact which could only be brought upon the record by a bill of exceptions. The order refusing the motion to quash was not excepted to in the court below; therefore, in passing upon the assignment of error to that order, we can look only at the record proper: In re Pottstown Borough, 117 Pa. 538; Bank v. Earley, 113 Pa. 477-482; Shaffer v. Eichert, 132 Pa. 285; Com’th v. Ware, 137 Pa. 465; Bradwell v. R’way Co., 139 Pa. 404; Stockham v. Boyd, 22 W. N. C. 118; s. c. 11 Cent. Rep. 187. As it does not affirmatively appear by the record that the order was not published, the legal presumption is that it was (if it was necessary) upon the principle omnia preesumuntur rite esse acta. The omission, in the order, expressly to direct publication does not raise a contrary presumption. Any other construction of the act of 1875 would be intolerable. For example, the record before us — as printed at least — does not show affirmatively that the order fixing the number of regular terms, and the times for holding the same, was published as directed by the act of 1875, but, surely, no one would contend that an appellate court would be warranted in reversing and annulling what was done at any of those terms upon the ground that the order establishing them was invalid for want of due publication, where the latter fact did not affirmatively appear of record.

Again, the order of April 27, was not, strictly speaking, a modification or change of the original order with respect to the number of the regular terms and the time of holding the same. These remained unchanged, and, construing the statutory provision as to publication literally, a plausible argument might be made that it does not apply to a modification or change of the original order in other particulars. But in view of the provisions of the third section and the manifest purpose of the legislature in directing publication, perhaps this is too literal a construction of the provision. Without expressing a more decided opinion upon that question, let us assume that the order should have been, but was not, published. Was the grand jury, because of this failure strictly to comply with the direction of the statute, an illegal body, without authority to act on bills sent before it ? The only ground upon which this question can be answered in the affirmative is that the provision of the statute is imperative, and that a failure to publish the order renders everything done in pursuance of it void. As has more than once been remarked, it is not easy to lay down any general rule as to when the provisions are merely directory and when mandatory or imperative, and it is difficult to reconcile all the cases upon the subject. But there is authority for saying that where the words are affirmative, and relate to the manner in which power or jurisdiction vested in a public officer or body is to be exercised, and not the limits of the power or jurisdiction itself, they may and often have been construed to be directory: Bladen v. Phila., 60 Pa. 464; Magee v. Com’th, 46 Pa. 358; Pittsburg v. Coursin, 74 Pa. 400; Dewhurst v. Allegheny, 95 Pa. 437; Smith v. Kingston Borough, 120 Pa. 357, 360. If the question of the publication of an order like the one in question is a jurisdictional one and always open to proof, the slightest irregularity in the publication would be as fatal as entire omission. The consequences which would flow from such a construction of the statute are such as to cause us to hesitate before adopting, and applying it to a case where the party complaining of the irregularity was in no way injured thereby.

But it maybe said that the purpose of the provision is to give notice, and that for want of such notice the defendant may have lost the opportunity to interpose challenges to the array, or to individual members of the grand jury. If it appeared that he had any grounds for such challenges it might be necessary to consider whether, if he was prevented from interposing them at the proper time, he would not have the right to assign them as a reason for quashing the indictment. But no such question is presented. The grand jury that found these bills was constituted precisely as it would have been had it met on the first Monday of the term, and there is no allegation that any of its members were disqualified generally, or were disqualified by reason of prejudice, interest or otherwise to act impartially upon the defendant’s case. That in extraordinary cases an indictment may be found without previous notice to the accused is well settled. The remarks of Justice Agnew upon this general question are peculiarly applicable to the present discussion. “ It has never been thought that the 9th section of the 9th article of the Constitution, commonly called the Bill of Rights, prohibits all modes of originating a criminal charge against offenders, except that by a prosecution before a committing magistrate. Had it been so thought, the court, the attorney general, and the grand jury would have been stripped of powers universally conceded to them. In that event the court could give no offence in charge to the grand jury, the attorney-general could send up no bill, and the grand jury could make no presentment of their own knowledge, but all prosecutions would have to pass first through the hands of inferior magistrates; for in all the instances mentioned the defendant could not be heard by himself or his counsel, demand the nature or cause of accusation, or meet the witnesses face to face, until after the bill had been found by the grand jury: ” McCullough v. The Commonwealth, 67 Pa. 30. “ That this can be done is undoubted. And there are occasions where such an exercise of official authority would be just and necessary; such as where the accused has fled the justice of the state, and an indictment found may be required previous to demanding him from a neighboring state, or where a less prompt mode of proceeding might lead to the escape of a public offender : ” Rowand v. Com’th, 82 Pa. 405. See also Harrison v. Com’th, 123 Pa. 508; Com’th v. Green, 126 Pa. 531; Davidson v. Com’th, 5 Cent. Rep. 484; Traviss v. Com’th, 106 Pa. 597.

Our conclusions may be summarized as follows:

First, the court of quarter sessions had authority under the act of 1875 to make the order of April 27, 1895, requiring the grand jury for the August term of that year to meet prior to the first day of the term.

Second, the fact that the meeting of the grand jury thus ordered was coincident with a special or adjourned session did not invalidate the order nor convert such special or adjourned session into a regular term.

Third, omission to publish the aforesaid order in two newspapers thirty days prior to the meeting of the grand jury was not, standing alone, legal ground for quashing an indictment found by the grand jury at such meeting.

Fourth, even if such publication was necessary to give validity to the acts of the grand jury, it is to be presumed on appeal, in the absence of affirmative record evidence to the contrary, that the order was duly published, upon the principle, omnia prsesumuntnr rite esse acta.

For these reasons the first assignment of error is overruled.

The reasons given by the court for sustaining the objections to the questions asked C. E. Graybill on cross-examination, and specified in the third and fifth assignments, fully vindicate the rulings complained of. As to the question specified in the fourth assignment it is sufficient to say that Graybill’s belief as to the solvency of the firm was not a fact material in the issue being tried; nor was it made material by anything he had testified to in chief. Besides that, if the fact was of any importance, no harm was done the defendant by sustaining the objection to this particular question, because tbe witness had already testified on cross-examination that, assuming that the defendant’s individual property was liable, he never knew that the bank was insolvent. Thus the defendant had the substantial benefit of the testimony, notwithstanding the ruling complained of. This disposes of all of the assignments, and finding no error in the record the judgment must be affirmed.

The judgment is affirmed, and it is further ordered that the defendant, E. K. Smith, be remanded, to the end that the sentence of the court below be executed, and that he be confined according to said sentence for the residue of the term which had not expired on the 20th day of April, A. D. 1896, the date of the suspension of the sentence; and that the record be remitted that the sentence and this order be carried into effect.


text:
    Commonwealth of Pennsylvania v. E. K. Smith, Appellant.
    Argued Nov. 10, 1896.
    February 17, 1897:
    Appeal, No. 90, Nov. T., 1896, by defendant, from judgment and sentence of Q. S. Lancaster Co., June Sess., 1895, No. 30, on verdict of guilty.
    Before Rice, P.. J., Willard, Wickham, Beaver, Orlady and Smith, JJ.
    Affirmed.
   Opinion by

Rice, P. J.,

All of the questions raised by the assignments of error in this case have been considered and disposed of in the opinion filed in No. 89, Nov. term, 1896. For the reasons there given the judgment must be affirmed.

The judgment is affirmed, and it is further ordered that the defendant, E. K. Smith, be remanded to the end that the sentence of the court below be executed, and that he be confined accordingly to said sentence for the residue of the term which had not expired on the twentieth day of April, A. D. 1896, the date of the suspension of the sentence, and that the record be remitted that the sentence and this order be carried into effect.


author: Beaver, J.,

text:
    Central Poor District of Luzerne County v. The Directors of the Poor of Jenkins Township, Pittston Borough and Pittston Township, Appellants.

      Poor law — Husband and wife — Wife's settlement — Desertion of wife.

      A wife’s settlement follows that of her husband’s. If, therefore, a husband moves from one poor district to ¡mother, where he acquires a legal settlement, an allegation, even if proved, that the wife who remained behind was deserted by the husband, does not suffice to give the wife a settlement in the district of her residence, being the one from which the husband had moved.

      Poor law — Settlement—Laches of poor district.

    Where a.n insane married woman becomes a public charge on a poor district and the poor district neglects for two years to make inquiry as to the husband, who was liable to provide for his insane wife, such district is guilty of laches which cannot be visited upon the district where the husband, who had died in the meantime, had acquired a settlement.
    Argued Jan. 11, 1897.
    Appeal, No. 17, Jan. T., 1897, by defendants, from order of Q. S. Luzerne Co., Sept. Sess., 1893, No. 468, on order of removal of Sarah Wall Ziegler, an insane pauper, and also approval in the same case.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Reversed.
    Order of removal and order of approval in the matter of an insane pauper. Before Lynch, J.
    It appeared from the evidence that Henry Ziegler, Jr., and Sarah Wall, the pauper in this case, were married'and resided in the borough of Pittston, the defendant district. They lived together there for some time, and about January 3, 1888, the husband moved to the borough of Wyoming, the plaintiff district, where he leased, occupied, paid rent for and kept a licensed hotel until September 23, 1892, when and where he died.
    There was evidence tending to show that prior to said removal by the husband that he had deserted his wife. During his residence at Wyoming he was charged with and paid Ids proportion of the public taxes and levies therein for upwards of two years successively.

      On September 24, 1891, Sarah Wall Ziegler, the wife and the pauper in this case became insane and chargeable to defendant, the Pittston district.
    On September 19, 1893, an order of removal for the said pauper from the defendant to the plaintiff district was had, and on September 20, 1893, an order of approval for the maintenance of the pauper up to that time, both orders being duly issued by two justices of the peace having jurisdiction of the same.
    On the last mentioned day said order of removal was served on plaintiff with an explanatory notice that actual removal of the pauper was impracticable and unnecessary, and that on the following day said order of approval was served on plaintiff.
    September 23,1893, the plaintiff took an appeal from said orders of removal and approval.
    On March 23, 1896, the court, Lynch, J., discharged the order of removal and sustained the appeal. Defendant appealed.

      Errors assigned were (1) error in refusing specifically to affirm defendant’s request for findings of fact; (2) in refusing specifically to dispose of defendant’s request for findings of law; (3) in refusing to find as requested in defendant’s first request for finding of law, which reads as follows : “ That Wyoming borough in plaintiff district was Henry Ziegler, Jr.’s, last legal place of settlement, and therefore it was also the last legal place of settlement of his wife, Sarah Wall Ziegler, the pauper in this case; ” (4) in entering a decree dischai'ging tire order of removal and sustaining the appeal therefrom; (5) in directing that plaintiff pay the bill of costs and charges incurred in the proceedings ; (6) in not entering a decree confirming the orders of removal and approval and directing plaintiff to pay to defendant-the amount set forth in said order of approval, together with such other charges, costs and counsel fees as should be considered just.

      G. Frank Bohan, for appellants.
    — The first and second assignments of error should be sustained because it has been expressly ruled that a refusal to answer points submitted is good ground for exception: Peoples S. Bank v. Denig, 131 Pa. 241; Cambria v. Madison, 138 Pa. 109.
    The other assignments of error all turn on the correct answer to the question, whether Sarah Wall Zeigler shall be deemed to be settled where her husband was last legally settled: Act of June 13, 1836, P. L. 539; Poor District v. Danville, 106 Pa. 446.
    February 16, 1897:
    The case of Overseers v. Overseers, 84 Pa. 429, cited in the opinion of the learned judge below, is not in point, because there the wife was divorced a mensa et thora from her husband, and it was on that ground the case was decided.

      J). L. O'Neill, for appellee.
    — As to the effect of the desertion, cited, Act of May 4, 1855, P. L. 430; also Black v. Tricker, 59 Pa. 13; Ellison v. Anderson, 110 Pa. 486.
    A divorced wife may gain a settlement: Overseers v. Overseers, 84 Pa. 429. And so also has it been declared in the case of a separation from a husband: Overseers v. Overseers, 20 W. N. C. 81. The same doctrine is enunciated in Mifflin v. Elizabeth, 18 Pa. 17; Washington Co. v. Mahaska, 47 Iowa, 57; Burlington v. Swanville, 64 Me. 78.
    It was decided in Elk Twp. v. Jordan Twp., 10 C. C. 245, that, save in cases of emergency, an order of removal not founded upon a previous order of relief is void.
   Opinion by

Beaver, J.,

There is no question as to the regularity of the proceedings in this case. The order of removal and the order of approval were both regularly issued by proper authority in proper form. The appeal from both was taken within the time prescribed by the statute. We have, therefore, to consider the two questions raised by the record, viz: the settlement of the pauper and the liability for the amount expended for her support up to the time of the order of approval.

Sarah Wall Ziegler, the pauper, became chargeable upon the defendant district September 24, 1891. At that time her husband was living and had an unquestioned settlement in Wyoming borough, which is a part of the plaintiff district, having acquired such settlement both by the payment of his proportion of public taxes for two years successively, and also by virtue of having taken a lease of real estate continuing for several years, the rental of which exceeded $10.00 per annum, and having dwelt upon the same for one whole year and paid the rent. Under the tenth section of the act of June 18, 1836, P. L. 539, the wife’s settlement was that of her husband, namely, in the plaintiff district, unless there be something in the ease to render it exceptional. It is alleged, however, that Plenry Ziegler, Jr., the husband, previously — in 1884 — deserted her and that, although he removed to Wyoming borough in 1888, she remained in Pittston. Jt is further alleged that, b}r reason of such desertion, she acquired the right to gain a settlement of her own independently of her husband. Conceding this to be true and admitting that Plenry Ziegler, Jr., had a settlement in the defendant district at the time of his removal to Wyoming borough in the plaintiff district, there is no evidence of any kind that she chose, even if she could choose, the former as the place of her settlement or that she gained an independent settlement by any of the means pointed out in the act of assembly. We take it, therefore, that the plain rule laid down in the 10 th section of the act of 1836, supra, governs this case, and that the settlement of the wife followed that of her husband, and that, inasmuch as he had a settlement oar the 24th of September, 1891, when the wife became a public charge, her settlement followed his and was in the plaintiff district.

It may be fairly questioned whether under the evidence Plenry Ziegler, Jr., had himself any settlement in Pittston borough at the time of his removal to the borough of Wyoming. As we view the case, however, this is eaitirely immaterial for the reason that the wife, so far as the testimony shows, never by any act of hers gaiared any settlement independently of her husband, or indicated any intention of choosing aary other than the one which he undoubtedly acquired as hereiarbefore indicated in the borough of Wyoming (see Scranton Poor Dist. v. Danville, 106 Pa. 446), aard although it has been held as in Overseers of Harmony v. County of Forest, 91 Pa. 404, that “ Where an indigent insane person has no legal settleaneart in the commonwealth, that his place of residence shall be held to be his place of settlement; and, if the evidence fails to show a settlement, but a residence be proved in a poor district, said district is liable for the expenses, which liability can only be thrown off when said district discovers aaid adduces proof of his place of legal settlement,” yet the fact of resideoice gives a right to relief oaily- when no legal settlement exists within the commonwealth. It follows that the order of removal was well taken, and that Sarah Wall Ziegler had a settlement at the time she became a public charge, in the Central Poor District of Luzerne county, the plaintiff.

The appeal in the court below was taken from the order of approval as well as from the order of removal. That appeal was properly sustained by the court below. The pauper became a public charge September 24, 1891. Being an insane person, she was immediately removed to the hospital for the insane at Danville. The order of approval was not taken out until the 20th of September, 1893, nearly two years thereafter. Henry Ziegler, Jr., did not die until September, 1892. If defendant had given plaintiff timely notice, the husband could no doubt have been compelled to provide for his insane wife. The slightest inquiry on the part of the poor directors of the defendant district would have revealed not only the settlement of Henry Ziegler, Jr., but his ability to maintain his unfortunate wife. No such effort seems to have been made. It will be unfair, therefore, to visit the-laches of the defendant district upon the plaintiff district. We are of opinion, therefore, that the decree of the court below in regard to the order of approval should be affirmed. It is, therefore, ordered, adjudged and decreed that the settlement of Sarah Wall Ziegler was at the time of the date of the order of the removal, namely, the 19th of September, 1893, in the Central Poor District of Luzerne county, and the order of removal taken by the directors of the poor of Jenkins township, Pittston borough and Pittston township on that day is confirmed, and the appeal taken therefrom by the Central Poor District of Luzerne county is dismissed, and the decree of the court below in relation thereto is reversed.

The appeal from the order of approval taken by the directors of the poor of Jenkins township, Pittston borough and Pittston township on the 20th day of September, 1893, by the Central Poor District of Luzerne county is sustained, and the decree of the court below in relation thereto is affirmed. The costs in the court below to be equally divided between the plaintiff and the defendant; the costs of this appeal to be paid by the appellee.


text:
    E. B. Wheelock v. Henry Harding, Appellant.

      Liens — Priority of — Mortgage—Mechanic's lien — Parol evidence.

    Where at the time a mortgage was recorded the record disclosed no prior lien against the premises, parol evidence is inadmissible to show that the materials were furnished prior to the date of the mortgage for which a mechanic’s lien was filed of a date subsequent to the mortgage. The date of the filing the lien is conclusive, and a purchaser at sheriff’s sale was not bound to look beyond the record: Reading v. Hopson, 90 Pa. 494, followed.

      Practice, O. P. — Mortgage—Judgment in short form, when valid.

    A judgment entered generally in short form against the terre-tenant who had been summoned in a scire facias is valid, and will sustain a levari facias where the scire facias was regularly issued and the land bound by tlie mortgage fully described therein, there being in the scire facias the materials out of which the judgment can be entered at length : Coyle v. Reynolds, 7 S. & R. 328, followed; Wilson v. McCullough, 19 Pa. 77, distinguished.

      Mortgage — Neglect of prothonoiary to notify recorder of sci. fa. — Title of sheriff's vendee.

    The neglect of a prothonotary to furnish the recorder with the certificate of the issuing of a scire facias upon a mortgage for entry on the record of the mortgage, as provided by the Act of April 3, 1860, P. L. 630, does not affect the title acquired by the sheriff’s vendee under a sale on the judgment entered on the scire facias.

      Deed — Time of delivery — Parol evidence.

    The face of a deed cannot show the time of its delivery; if it becomes essential to prove such time of delivery it can only be done by parol evidence which is therefore admissible.
    Argued Jan. 20, 1897.
    Appeal, No. 42, Jan. T., 1897, by defendant, from judgment of C. P. Wyoming Co., Jan. T., 1894, No. 84, on verdict for plaintiff.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady ' and Smith, JJ.
    Affirmed.
    Ejectment. Before Dunham, P. J.
    The plaintiff claimed title to the land in question by virtue of purchase by him at a sheriff’s sale thereof on November 11, 1893, by writ of levari facias issued on a judgment for $342.12, taken and entered January 17, 1891, in proceedings of scire facias sur mortgage.

      This mortgage was given by Milton Penrith to Chauncey Benson, and was recorded December 28, 1886.
    The defendant showed a sheriff’s sale and deed to him, made December 4,1891.
    He also offered in evidence the mechanic’s lien docket, which showed a mechanic’s lien, which, on its face, appeared to antedate the lien of the mortgage by at least ten days, in that it was for lumber furnished December, 18, 1886, for the erection of a house on the lot described, which claim was filed within the statutory period on January 22, T887.
    The jury found the verdict for plaintiff for the land described in the writ, subject to the opinion of the court upon the sufficiency of the record of the sci. fa. sur mortgage, and the proceedings thereon, to carry title to the.plaintiff under the sheriff’s sale, and deed to him, given in evidence on the part of the plaintiff. The court subsequently entered judgment for the plaintiff on the point reserved, filing no opinion.

      Errors assigned were (1) rejection of parol evidence to show the date of the commencement of the buildings described in mechanic’s lien, which was filed on a subsequent day to the date of the record of the mortgage; (2) in rejecting evidence offered by defendant to show that he- purchased the property in dispute on November, 1886, and immediately went into the possession thereof; that the contract of purchase was in writing and that the witness had made diligent search for said contract and was unable to find it. This for the purpose of showing the actual date of purchase, so that the purchase will appear to have been made previous to the furnishing of material mentioned in the mechanic’s lien offered in evidence; (3) in admitting evidence offered by plaintiff as follows : “Q. State whether you got your deed at the same-time you executed the mortgage ? ” This for the purpose of proving that as a matter of fact the deed in question was executed and delivered to the witness before the hour of 2 o’clock; that is, before the mortgage was recorded, the mortgage books in this county mentioning the hours. To which counsel for the defendant abject that parol evidence cannot be received to explain, extend, aid or alter the lien of the mortgage, nor to show when it began; (4) in its answer to the defendant’s first point, the point and answer thereto being: “That it is presumed that the first sheriff’s sale, at which Henry Harding bought the land, divested all liens upon the property, and the burden is upon the plaintiff to show that it comes within the exception.” Answer: This, gentlemen, is true, but we say to you that under the evidence in the case the plaintiff has shown, prima facie, that his mortgage has a first lien. (5) in refusing to affirm the defendant’s second point and answer thereto being: “ That the plaintiff has failed to prove that this mortgage was a first lien and therefore within the exception.” Answer: This we do not affirm. We think that the fact the evidence shows it was a first lien, it was incumbent upon the defendant to show it was not, if he desired to raise that objection. (6) in refusing to affirm the defendant’s third point, the point and answer thereto being: “ That at the time of the first sheriff’s sale the mechanic’s lien was the first lien upon the land.” Answer: That we do not affirm. (7) in refusing to affirm the defendant’s fourth point, and in answering as it was answered; the point and answer being as follows : “ That the mechanic’s lien upon its face appeared to antedate the lien of the mortgage.” Answer: This point we do not affirm. The mortgage, upon its face, antedates the mechanic’s lien. (8) in refusing to affirm the defendant’s sixth point, the point and answer thereto being: “ That as such purchaser [see fifth point: ‘ That the defendant having purchased this land nearly two years before the second sale of the plaintiff, and not having been warned by sci. fa. sur mortgage or by alias, he may now interpose any and the same defense he might have made to the mortgage, or the proceedings on the sci. fa., had he been made a party thereto,’] he may take advantage of any defects in the record or the proceedings on the sci. fas.” Answer: This point we do not affirm. (9) in admitting evidence, on behalf of the plaintiff, of the record and files in No. 43, January term, 1891, contained among the records of Wyoming county continuance docket, No. 27, page 589, the defendant objecting .that'the judgment and proceedings thereon were not sufficient to connect them with the mortgage that has been given in evidence; (10-12) in refusing to hold that the judgment of the sci. fa. sur mortgage was irregular; (13) in saying to the jury in the general charge, as follows: “ And the evidence shows that the mortgage was a first lien upon the land. The plaintiff, therefore, was entitled to issue his scire facias, and the deed under it conveyed title to him.” (14, 15) in directing the verdict for the plaintiff subject to the opinion of the court upon the point reserved.

      .E. J. Jordan, W. JE. Little and O. A. Little, for appellant.—
    The mechanic’s lien originated on December 18, 1886, and related back to the first stroke of pick and shovel: Denkel’s Est., 1 Pearson, 218.
    The record of the mechanic’s lien should have been admitted .in evidence, and the defendant allowed to produce parol evidence of knowledge by the mortgagee before he made his loan, of such facts as showed that he knew that Stark then had a lien on the building: Scull’s App., 115 Pa., 141; Schraeder v. Burr, 10 Phila. 620.
    Whatever puts a party upon an inquiry amounts in judgment at law to notice: Hottenstein v. Lerch, 104 Pa. 454.
    A purchaser at a sheriff’s sale looks to the record for mechanics’ liens, and if they appear to be valid and subsisting he is not bound to look farther: Goepp v. Gartiser, 35 Pa. 130.
    A purchaser under a mechanic’s lien had the right in the absence of notice to assume that the liens were as they' appeared upon the record, and the judgment docket was the criterion: Saunders v. Gould, 134 Pa. 445.
    A mechanic’s lien being entered within the period regulated by law, the mortgagee is bound to take notice of it:. Albright v. Assn., 102 Pa. 411.
    This lien antedated every lien whether a mortgage or a judgment, which, attached subsequently to the commencement of the building, like this mortgage did: Parrish’s App., 83 Pa. 111; Germania Bank, 95 Pa. 329.
    The recital in the mortgage that there was a building on the premises -was sufficient notice: Reynolds v. Miller, 177 Pa. 168.
    A scire facias sur mortgage is a proceeding in rem, to have -the land sold for the debt secured by the mortgage: Ridgway v. Longaker, 18 Pa. 215, and it was grave error to allow the sale to relate back, by virtue of process issued on the judgment entered in the short form in this case, which did not disclose whether it was a judgment upon a sci. fa.: Wilson v. McCullough, 19 Pa. 77.

      February 16, 1897:

      James F. Frear and Charles F. Terry, for appellee.
    — When it is a question of the divestiture of the lien of a mortgage, parol evidence is not admissible to show the date of the commencement of a building described in a mechanic’s claim: Reading v. Hopson, 90 Pa. 494; Hilliard v. Tustin, 172 Pa. 354; 2 Trickett on Liens, sec. 842.
    All bidders at a sheriff’s sale must stand upon an equal footing. The record is conclusive upon all as to the priority of liens at the time of the sale, and all are concluded by the record: Cayne v. Souther, 61 Pa. 455.
    As to the sufficiency of the judgment on the scire facias sur mortgage, see, Murray v. Weigle, 118 Pa. 159; Dorris v. Erwin, 101 Pa. 239; Cooper v. Borrall, 10 Pa. 491.
    The short form of judgment is sufficient on a scire facias sur mortgage; 1 Trickett on Liens, sec. 158; see also Brotherline v. Mallory, 8 Watts, 132; Lewis v. Smith, 2 S. & R. 155.
    As to the neglect of the prothonotary to certify to the recorder that a sci. fa. had been issued on the mortgage; it is a mere clerical duty of the prothonotary, and the object of the certificate is set forth in the second section of the act requir--,, ing the certificate: Act of April 3, 1860, P. L. 630.
   Opinion by

Beaver, J.,

This is an action of ejectment in which both parties claim title through deeds made in pursuance of sheriff’s sales made at different times. The deed of the defendant is dated December 4, 1891, and, in point of time, is the older of the two. The allegation of the plaintiff is that the sale made by the sheriff in pursuance of which this deed was made did not divest the lien of a mortgage given by Milton Penrith, the then owner of the land, to one Chauncey Benson. This mortgage was entered and filed for record December 28, 1886. A mechanic’s lien was entered against a building erected upon the same land in the lien sufficiently described. The judgment, upon which the sale was made, was subsequent to the mechanic’s lien. In answer to the allegation of the plaintiff that the lien of the mortgage was not divested by the first sale, the defendant replies: true it is that the mechanic’s lien was actually filed January 22, 1887, but, upon the face of the lien, it appears that the materials were furnished for the erection of the building referred to December 18, 1886, ten days before the entry of the mortgage. It is conceded that the plaintiff, who purchased the property in controversy at the second sale, is bound by the records as they existed on November 11, 1893, the date of the last sale, his duty to examine the records being emphasized by a notice given by the defendant at the time of the sale that “ the mortgage judgment and levari facias upon which the same (the land in controversy) is advertised for sale are not a lien thereon.”

Five distinct questions are. raised by the fifteen assignments of error which are disclosed by the record. 1st. Was parol evidence admissible to show the date of the commencement of the building described in the mechanic’s lien? And, if not, 2d. Did the mechanic’s lien on its face show that it antedated the mortgage, so that a judicial sale made upon a writ issued on a judgment whose lien was subsequent to both would divest the mortgage? 3d. Was the judgment entered on the scire facias issued upon the mortgage such as would support a levari facias and a sale thereunder? 4th. Did the neglect of the prothonotary to furnish the recorder with a certificate of the issuing of the scire facias upon the mortgage for entry on the record of the mortgage in his office affect the title acquired by the plaintiff under the sale on the judgment entered in the said scire facias? 5 th. Was parol evidence admissible to show that the deed by which the mortgagor acquired title was delivered to him, before the mortgage was recorded ?

The first two propositions are, we think, fully answered in the case of Reading v. Hopson, 90 Pa. 494. The facts of that case are so entirely similar to the one under consideration that we are not left in doubt as to our duty in the premises. We are not called upon to explain or to justify the decisions of the Supreme Court. Our duty is simply to follow them, and this duty is emphasized by the fact that this case has been fully and distinctly followed in Hilliard v. Tustin, otherwise quoted as Wilson’s Appeal, 172 Pa. 354. It is alleged by the appellant that these cases have been modified by Reynolds v. Miller, 177 Pa. 168. An examination of the latter case, however, discloses the fact that Reading v. Hopson, supra, is distinctly followed and approved therein and the lien in that case was held to antedate the mortgage, although entered subsequently, because the mortgage itself specifically describes tbe building erected on tbe land against which the lien was filed. The recital in the mortgage gave distinct and express notice to the purchaser at sheriff’s sale, and upon this ground the case is distinguished from Reading v. Hopson and Wilson’s Appeal, supra. It is true, as claimed, that the mechanic’s lien filed in this case did show that materials were furnished prior to the date of the lien of the mortgage, but whether the building was commenced before or after that time or whether the materials were delivered upon the premises at the time at which they were charged does not appear, and the entry of this date, therefore, conveyed no notice of any kind as to commencement of the building to the plaintiff, who was the purchaser at the last sheriff’s sale.

It has been seriously and strenuously urged by the appellant that the judgment entered in the scire facias upon the mortgage would not support a writ of levari facias and a sale made in pursuance thereof, and that the plaintiff’s title must, therefore, fail. The record shows that a writ of scire facias upon the mortgage, dated December 28, 1886, and recorded in the office for the recording of deeds in Wyoming county, in mortgage book No. 3, page 693, etc., was issued. The writ of scire facias is set forth in extenso in the appellant’s paper-book, and contains a description of the land described in the mortgage. The writ was returned served on January 17,1891, judgment was allowed in open court; same day prothonotary finds due $342.12 and costs; thereupon judgment. Subsequently, on February 23, 1891, Milton Penrith, the mortgagor, agreed with Mary B. Marcy, to whom the mortgage and judgment had been assigned “that the judgment entered in the above case shall be as binding and valid as if entered on a verdict of a jury, and I hereby ratify the same.” The objection which the appellant makes to this judgment is, that it is not entered in accordance with the provisions of the 6th section of the act of 1705,1 Sm. L. 57, which prescribes the form of judgment to be entered in such cases. The early case of Coyle v. Reynolds, 7 S. & R. 328, m which a judgment had been rendered generally in short form against terretenants who had been summoned in a scire facias, seems to be in point, and is applicable to the present case. There has been no departure from the practice recognized in that case in Pennsylvania. In general, that is certain winch is capable of being rendered certain, and there is upon the record of the scire facias of the mortgage in this case sufficient to show what the judgment entered by the prothonotary means, and what the effect of it should be. If the plaintiff in that judgment were endeavoring to enforce its provisions against the defendant therein, she would doubtless be restricted, upon application by the defendant to the proper tribunal, to the lands described in the writ of scire facias. The appellant quotes and strongly insists upon the case of Wilson v. McCullough, 19 Pa. 77, as modifying the doctrine of Coyle v. Reynolds, supra, but an examination of that case shows that the praecipe for the scire facias did not describe the land, and that no writ of scire facias did in fact ever issue. There was nothing upon the record, therefore, by which the judgment which was general could be limited, and for that reason it was held that it would not support a levari facias. This is a very different state of facts from that which exists in the present case. Here the scire facias was regularly issued, and the land bound by the mortgage is fully described therein. There is, therefore, in the record of this scire facias the materials out of which the judgment can be entered at length, and the sale made upon the levari facias issued thereon is, in our opinion, valid.

The Act of April 3, 1860, P. L. 630, “ Relative to proceedings upon mortgages and recognizances,” is not difficult of interpretation. The 2d section clearly shows its object. It is to provide for the benefit of the defendant in the action a satisfaction of the mortgage or recognizance, without a formal entry thereon by the mortgagor or other person interested. That a failure on the part of the prothonotary to make such a return, or of the recorder to enter it upon the record of the mortgage, if made, should affect the title to real estate, certainly did not enter into the mind of the legislature, and we are entirely unwilling to give such effect to its provisions. It imposes no duty whatever upon the purchaser at a sheriff’s sale. The duty imposed by the act is purely clerical. The defendant- in the suit upon the mortgage or recognizance would seem to be the only person interested in having it done, and the only penalty which could be visited upon the prothonotary or recorder for a failure to comply with the provisions of the act would seem to be the loss of the fees which are therein provided for the discharge of the duty.

There was no error in admitting parol evidence to prove the time of the delivery of the deed from Mary A. Wall to Milton Penrith. In what other way could it be proved ? The delivery of a deed is an act. The fact of its delivery does not appear upon the deed itself, nor can the record of it show the time of its delivery. If necessary to be proved, it can in general be done only by parol.

A careful examination of tbe whole case reveals no error in the trial, and the assignments of error are, therefore, all overruled, and the judgment is affirmed.