In re McClain's Estate

• Decision Date: 01 March 1897
• Docket Number: 317
• Citation: 180 Pa. 231,36 A. 743
• Parties: Estate of Edward McClain. Appeal of Jennie G. McClain and John Field, executors of Edward McClain, deceased
• Court: Pennsylvania Supreme Court

36 A. 743

180 Pa. 231

Estate of Edward McClain. Appeal of Jennie G. McClain and John Field, executors of Edward McClain, deceased

No. 317

Supreme Court of Pennsylvania

March 1, 1897

Argued January 25, 1897

Appeal, No. 317, Jan. T., 1896, by Jennie G. McClain et al from decree of O.C. Phila. Co., dismissing exceptions to adjudication. Affirmed.

Exceptions to adjudication.

The auditing judge, PENROSE, J., awarded to the Commercial National Bank of Pennsylvania the amount of a judgment against the accountants of December term, 1891, No. 89, in common pleas, No. 1. of Philadelphia county, $9,104.51, with interest. Counsel for the accountants, alleging that the decedent was surety only, and that Nelson Bros. & Co. were the principal debtors in the transaction out of which the judgment obtained as above by the Commercial National Bank had its origin, asked to be allowed to make an investigation of the accounts of the alleged principal debtor and the bank. The auditing judge being of opinion that the validity of the judgment could not be impeached collaterally declined to permit such inquiry, except so far as concerned matters occurring since its date; and no evidence as to such matters was offered or alleged to be in existence.

Exceptions to the adjudication were dismissed, FERGUSON, J., filing the following opinion:

In this case a claim was presented to the auditing judge upon a judgment obtained in the court of common pleas, which judgment was subsequently affirmed by the Supreme Court Bank v. McClain, 171 Pa. 132. It was alleged that this estate had a defense to the judgment. It is immaterial for the purpose of this decision to state what the defense was. It is sufficient to say that the auditing judge very properly overruled the offer, upon the ground that the validity of the judgment could not be impeached collaterally. When the parties and the cause of action are the same here as in the court of common pleas, the presumption is that the questions presented for decision were the same. But this case rises much higher than a presumption, for the claim is attempted to be defended against here upon the very same ground that it was defended there. The subject of the controversy is, therefore, res adjudecata, and would not again be considered and tried by the court which has jurisdiction in the matter, much less by another court which might have had jurisdiction originally. Every question which properly belonged to the subject, and which the parties might have brought forward at the time, must now be considered as settled, and the judgment in the court of common pleas conclusive between them.

The exceptions are dismissed and adjudication confirmed.

Errors assigned were dismissing exceptions to adjudication.

The orphans' court was right in its holding, and the decree appealed from is now affirmed.

Arthur M. Burton, for appellants. -- The right to an account belonged to the surety as well as to the debtor, and more particularly as the judgment against McClain's estate was only as against a surety, and not against him as principal, as it now appears by the judgment of McClain against Nelson Bros. & Co. that McClain was not indebted to that firm: Com. v. Miller, 8 S. & R. 452; Bangs v. Strong, 4 N.Y. 315; Bank v. Bank, 7 W. & S. 335; Wyman v. Mitchell, 1 Cow. 316; Hayes v. Ward, 4 Johns. Ch. 123; In re Pulsifer, 14 F. 247; Pearson v. Parker, 3 N.H. 366; McLellan's App., 76 Pa. 231; Guenther's App., 4 W.N.C. 41; Raeder's App., 167 Pa. 597; Kline's App., 86 Pa. 363; Gunn v. Dickey, 14 W.N.C. 274.

Wherever there is the practicability of avoiding circuity of action and needless costs, or where there is a special equity to be subserved and no superior equity of third parties will be injured, a set-off will be allowed upon equitable principles, though the case does not come within the language of the statute: Hibert v. Lang, 165 Pa. 439; Tustin v. Cameron, 5 Wharton, 379; Montz v. Morris, 89 Pa. 392.

John G. Johnson, with him Henry C. Terry, for appellee. -- There is no pretense that any of the matters offered to be shown in this proceeding were in the nature of newly discovered evidence, or could not for any reason, valid in law, have been presented at the trial of that case: Myers v. Kingston Coal Co., 126 Pa. 582.

Arthur M. Burton, for appellants, in reply. -- The only point made by the counsel in the argument on behalf of the appellee is that all the matters of proof, which the appellants now ask leave to offer, could and should have been presented in the former suit of the Bank v. McClain's Estate. But that suit, as reported, shows that the learned judge of the court below refused to submit any question as to the state of the accounts between the bank and Nelson Bros. & Co. to the consideration of the jury. The question of the accounts being thus withdrawn from the case, the record did not prevent the appellants from investigating the accounts before the auditing judge: Follansbee v. Walker, 74 Pa. 306; Fleming v. Ins. Co., 12 Pa. 391; Packet Co. v. Sickles, 5 Wallace, 580; Coleman's App., 62 Pa. 252; Ins. Co. v. Mardorf, 152 Pa. 22; Hallowell's Appeal, 20 Pa. 215; Hise's Est., 5 Watts, 157; Eyster's App., 16 Pa. 372; Wallace's Appeal, 5 Pa. 103.

The orphans' court has jurisdiction of the fund and all powers necessary to make a distribution to the parties entitled thereto: Williamson's App., 94 Pa. 231.

Before STERRETT, C.J., GREEN, WILLIAMS, McCOLLUM, MITCHELL, DEAN and FELL, JJ.

OPINION

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