Wolf v. Ferguson

Supreme Court of Pennsylvania June 28, 1889

Wolf v. Ferguson, 129 Pa. 272 (Pa. 1889)

18 A. 139; 1889 Pa. LEXIS 952

Clark, Green, McCollum, Mitchell, Paxson, Pee, Sterrett, Williams

Opinion of the Court

Pee. Curiam :

This case has been so elaborately argued by the auditor and the court below, that we do not find it necessary to continue the discussion at length. The reasons given by the learned judge for awarding the sum of $286.22 to W. W. Britton, guardian, are entirely satisfactory. This disposes of the second assignment of error.

*288We desire to say in regard to the first, that it is exceedingly vague and unsatisfactory. To allege in general terms that “the court erred in confirming the report of the auditor,” is to give us no information whatever. In what respect, or for -what reason did it err ? The remaining assignment, the third, is equally vague. It is, that “ the court erred in going outside of the report of the auditor and outside of the testimony, and in making up a report without legal testimony.” What fact did the court find outside of the testimony, or without testimony? This should have been stated to give the assignment any point. That the court below found some facts not found by the auditor appears from the opinion of the learned judge when he says: “I am of opinion therefore that the auditor’s report must be confirmed. But I have been compelled to find many facts not embraced in the auditor’s findings, in view of the course of the argument in court, and in order to a satisfactory consideration of all the questions raised, and I ought not to finally determine the cause upon this apparent state of facts, without giving Mr. Hollar’s counsel an opportunity to explain or rebut them. In order that they may move for a re-argument or a reference back to the auditor, it is ordered that the exceptions be dismissed and the auditor’s report confirmed, and that distribution be made accordingly. But this order and decree not to be entered or take effect for fourteen days from this date, and if within that time a motion be filed, the cause to be placed on the current argument list.” The learned judge had the right to go outside of the auditor’s report; he was not shut up within its four corners, and there is nothing to show that he went outside of the evidence. His opinion does not say so, and if he found any fact without evidence, it should have been distinctly-stated in the assignment of error. And, however the case may be, there was an opportunity afforded by the learned judge to correct any of his findings by a reference back to an auditor, or by a re-argument before the court. The appellant did not see proper to avail himself of this right, but brought the case directly here by appeal. As no objection to the findings of the court was made below, where it might and should have been made, we can attach but little weight to it here.

The decree is affirmed and the appeal dismissed at the costs of the appellant.

Reference

Full Case Name: G. W. WOLF, FOR USE v. W. H. FERGUSON
Cited By: 1 case
Status: Published
Syllabus: (а) Britton held a judgment against Wolf, which was a lien on Wolf’s own land and also on Wolf’s legal title to certain land which he had sold to Ferguson by a contract calling for a deed clear of incumbrances. There was unpaid, on said contract, purchase money to the extent of $1,000.25. (б) Wolf made a deed to Ferguson in execution of his contract, receiving in settlement of the purchase money $200.25 in cash, and Ferguson’s judgment for $800. Wolf assigned this judgment to Hollar in part payment of a certain judgment indebtedness due from Wolf to Hollar, subsequent in lien to Britton’s judgment. Hollar knew the $800 judgment was for purchase money. (o) Wolf’s own land was afterwards sold by the sheriff to Hollar. The proceeds were more than enough to pay Britton, but the sheriff made a special return that Hollar was entitled to the whole proceeds of sale, ignoring Britton’s judgment, although it appeared in the list of liens attached to the return. The record did not show that this return was read in court, but the sale was confirmed. (d) Hollar received a deed from the sheriff and retained the entire proceeds of sale, less costs. The land purchased by Ferguson was then sold by the sheriff under the $800 purchase money judgment held by Hollar, and the proceeds were brought into court for distribution. Britton, Hollar and subsequent lien creditors claimed payment out of the fund, which was insufficient to pay all. 1. By the sheriff’s sale of Wolf's Iand, Britton’s' judgment was paid as to subsequent lien creditors of Ferguson other than Hollar, the Wolf fund being the one primarily liable in equity, and Ferguson’s land sustaining the relation of surety for Wolf. If, therefore, Britton be paid out of the Ferguson fund, the latter’s creditors are entitled to subrogation against the Wolf fund. 2. The auditor having awarded Britton payment out of the Ferguson fund, deducting the amount so awarded from Hollar’s $800 judgment, this award is sustained, under the doctrine of marshaling assets, as simply subrogating Ferguson’s judgment creditors to Britton’s right against the Wolf fund, Britton’s proportion of which was wrongfully in Hollar’s hands. 3. On an appeal from a decree of distribution, made upon an auditor’s report, an assignment of error alleging in general terms that the court erred in confirming the report of the auditor, without stating in what respect or for what reason it erred, is too vague and unsatisfactory to be considered by the Supreme Court. (a) In passing upon exceptions to an auditor’s report, the court below, . after finding additional facts, confirmed the report, allowing the excep.tant fourteen days in which to move for a re-argument or reference back. Without making such motion the exceptant appealed, specifying that the court erred in going outside the report and the testimony, and making up a report without legal evidence.. A The going outside the report was not error, in the absence of anything to show that the court went outside the evidence, and as to this the specification was too vague, in that it did not state what facts the court found without evidence. Moreover, as the appellant did not move for a re-argument or reference back, little weight can be given in the Supreme Court to his complaint of the findings by the court below.