"In
August, 1871, Mrs. Susan Gilmore, by her next friend, filed
three petitions in the orphans' court praying for a
citation against John C. Gilmore, as administrator
respectively of Mary Cronon, Ellen Shea and Margaret Woods,
deceased, commanding him to settle an account in each estate,
or to show cause, etc., alleging inter alia that she was a
sister and next of kin to the three decedents; that he had
received money in each estate for which he had never
accounted and to part of which she was entitled, and that
Frederick Watts and Peter Spahr were the sureties on his bond
as administrator in each estate. The citations prayed for
were issued Aug. 28, 1871. On Oct. 23, 1871, John C. Gilmore
filed an answer admitting that he was administrator in said
three estates, and that he had never settled accounts
therein, averring that although money had been collected in
each estate it had been received and retained by Frederick
Watts, and that no part of it had ever come into his own
hands. On Nov. 21, 1871, a general replication to this answer
was filed by Mrs. Gilmore's attorney, and on Dec. 12,
1871, A.B. Sharpe, Esq., was appointed auditor in the several
proceedings 'to hear the evidence and report the facts
with his opinion.'
"In
the hearings before the auditor, Mr. Sharpe, evidence was
offered on behalf of Mrs. Gilmore to show the amount in said
three estates received by Judge Watts in 1859, and retained
by him on account of the unpaid purchase money of a house and
lot purchased by her in 1848, and that said amount, in
addition to payments made by her and credits claimed by her,
was largely in excess of said unpaid purchase money, and that
therefore there was in his hands a balance due her.
"Judge
Watts testified that he had received in 1859 Mrs.
Gilmore's share of her sisters' estates, and had
appropriated it, with her knowledge, to the unpaid purchase
money of the house bought by her in 1848. That the amount so
received, together with the payments made by her was about
$160 less than said unpaid purchase money, and that he had
forgiven her the balance in consideration of her poverty.
"The
auditor, Mr. Sharpe, in his report finds that the
administration bonds of John C. Gilmore were signed by only
one surety, Frederick Watts; that Judge Watts should be
charged with $113, with interest from 1853 (being two
years' wages of her son, which amount Judge Watts should
have credited on the purchase money of her house); that the
amount received from the estates of Ellen Shea, Mary Cronon
and Margaret Woods, while less than claimed by Mrs. Gilmore,
was in excess of the sum which Judge Watts admitted he had
received; and that on Sept. 5, 1863, the date on which Mrs.
Gilmore stated she had made a final payment of $300 to Judge
Watts, he had received from Mrs. Gilmore (including inter
alia in this calculation the amount received from the three
estates, the son's wages and the payment of $300 on said
date) $330.10 in excess of the unpaid balance of the purchase
money of the house and lot purchased in 1848. The auditor
found, in conclusion, that this $330.10 amounted, with
interest to March 5, 1874, to $538, and that after deducting
the costs of audit there was in Judge Watts's hands,
payable to Mrs. Gilmore, the sum of $450.
"To
this report exceptions were filed by W.J. Shearer, Esq., on
behalf of Mrs. Gilmore, because the costs of audit were
charged against the sum found in Judge Watts's hands; and
by John Hays, Esq., 'on behalf of exceptant,' because
the sum of $538 was found in Judge Watts's hands. The
report and exceptions were submitted to the court without
argument, and the report was confirmed by the court without
opinion filed. It is on the finding of the auditor, Mr.
Sharpe, and the decree of the court thereon, that the claim
of Mrs. Gilmore's executors is based.
"The
administration bonds of John C. Gilmore being signed by only
one surety are ipso facto void (4 Rawle, 382, 31 Pa. 522),
and no liability on the part of Judge Watts's estate can
be created thereby.
"The
questions for the present auditor to decide are: are the
former auditor's report and the decree of the court
thereon admissible in evidence to show a liability on the
part of Judge Watts's estate, and if admissible are they
conclusive as to such liability? Your auditor thinks that
both questions should be answered in the negative.
"The
proceedings before Mr. Sharpe were against John C. Gilmore as
administrator of various estates, and it is not open to
question that Judge Watts could have remained a stranger to
them throughout had he so desired. 'It is entirely clear
that a judge has no power to rule a stranger into court and
compel him to answer:' Martin v. Gernandt, 19
Pa. 129. It is urged by the counsel for Mrs. Gilmore's
executors, however, that Judge Watts voluntarily became a
party to the proceedings and so is bound by the decree; he
having appeared before the auditor personally and by counsel,
and having excepted to the finding of the auditor. The
evidence of Judge Watts's intention in this regard seems
to your auditor very unsatisfactory. Mr. Sharpe in his report
nowhere speaks of Judge Watts as a party to the proceedings.
He is mentioned merely as a witness called on behalf of the
respondent (John C. Gilmore). There is nothing to show that
Judge Watts was ever personally present at any of the
hearings before the auditor. His evidence is in the form of a
deposition apparently signed Aug. 12, 1873, and sworn to
before Mr. Sharpe, Oct. 14, 1873. As to his representation by
counsel, the auditor states that notice of the time and place
of the first meeting was given to 'R. M. Henderson, the
counsel for Hon. F. Watts;' but it does not appear that
Mr. Henderson attended that or any subsequent meeting. An
exception to the auditor's report was presented by John
Hays, Esq., 'attorney for exceptant,' and W.J.
Shearer, Esq., attorney for Mrs. Gilmore, swears that Mr.
Hays was concerned for Judge Watts. Mr. Hays, however, says
that he has no recollection of ever appearing before the
auditor.
"Under
the term parties (says Mr. Greenleaf, in his Law of Evidence,
§ 524), 'the law includes all who were directly
interested in the subject-matter, and had a right to make
defence or to control the proceedings, and to appeal from the
judgment. The right involves also the right to adduce
testimony, and to cross-examine the witnesses adduced on the
other side. Persons not having these rights are regarded as
strangers to the cause.' Under this definition the
position of Judge Watts seems to your auditor that of one who
considered himself a stranger rather than a party to the
proceedings before Mr. Sharpe.
"Had
it been Judge Watts's intention, however, to become a
party to the proceeding before Mr. Sharpe, it was not in his
power to do so, or in that of the auditor to admit him as
such. The action was against John C. Gilmore to compel him to
settle accounts in the three estates in which he was
administrator, and in that Judge Watts had no direct interest
whatever. The finding of the auditor that Judge Watts had
received from Mrs. Gilmore a sum in excess of the purchase
money of the house she bought in 1848 was, if correct, a
decision on a point foreign to the question at issue, and one
over which he had no jurisdiction. His report shows that the
sum found in Judge Watts's hands is made up, not of the
money received from the estates of Ellen Shea et al., in
1859; but of a credit of $113 in 1852 which Judge Watts had
not allowed, and of $300 which Mrs. Gilmore paid to him in
September, 1863. To give effect to the auditor's finding
now would be to declare the orphans' court the forum for
the settlement of accounts between parties in full life and
acting in their individual capacities.
"In
Kille v. Ege, 82 Pa. 102, the Supreme Court says: 'It is
well settled that the estoppel of a judgment extends only to
the question directly involved in the issued and not to any
incidental or collateral matter, though it may have arisen or
been passed upon.' Lewis & Nelson's Appeal, 67 Pa.
153, is to the same effect.
"In
Martin v. Gernandt, supra, Justice GIBSON, approving and
commenting on Fitzaldin v. Lee, 2 Dall. 205, says:
'Parties contesting the right to possession of land
agreed to try the matter in a summary way in the common
pleas, and to that end gave the proceeding the form of a
plaint under the landlord and tenant act; but the judgment
was reversed on error. Being coram non judice, because the
common pleas has only appellate and restricted jurisdiction
of such a case, it required no reversal; but the decision
shows that it is not every informal submission of a fact to a
court and jury which precludes subsequent inquiry into the
truth of it.'"
