Packer v. Owens

• Decision Date: 01 October 1894
• Docket Number: 37
• Citation: 164 Pa. 185,30 A. 314
• Parties: James C. Packer, Admr. of Wm. Cameron v. John A. Owens, Exr. of Adam Gundy et al., Appellant
• Court: Pennsylvania Supreme Court

30 A. 314

164 Pa. 185

James C. Packer, Admr. of Wm. Cameron
v.
John A. Owens, Exr. of Adam Gundy et al., Appellant

No. 37

Supreme Court of Pennsylvania

October 1, 1894

Argued: May 9, 1894

Appeals, No. 37, Jan. T., 1894, and No. 24, July T., 1894, by defendant, from orders of C.P. Union Co., Sept. T., 1888, refusing to strike off writ of levari facias and ordering satisfaction of judgment to be stricken from record. Reversed.

Scire facias sur mortgage. Rule to strike off lev. fa. and rule to strike off entry of satisfaction of judgment. Before McCLURE, P.J.

The facts appear by the opinion of the Supreme Court.

The appeal in the levari facias proceedings was taken Sept. 19, 1893. The petition to strike off entry of satisfaction was filed Oct. 31, 1893.

Errors assigned were in refusing to strike off levari facias, and in ordering satisfaction of the judgment to be stricken from the record.

Andrew A. Leiser, for appellants. -- The court was without jurisdiction to grant or make absolute the rule to strike off satisfaction, as the case was then appealed: Elliott on Appellate Procedure, §§ 541, 549; Ewing v. Thompson, 43 Pa. 372; Com. v. Kistler, 149 Pa. 345; Gardiner v. Murray, 4 Yeates, 560; Durant v. Essex Co., 11 Otto, 555; Ensminger v. Powers, 108 U.S. 292.

Either of these co-executors and co-plaintiffs could have satisfied this judgment in the lifetime of both: Devling v. Little, 26 Pa. 502; De Haven v. Williams, 80 Pa. 480; Jackson v. Shaffer, 11 Johns. 513; D'Invilliers v. Abbott, 4 W.N. 124; Wood v. Smith, 92 Pa. 379; Fesmire v. Shannon, 145 Pa. 201.

On the death of John B. Packer the rights and duties of the co-executor under the will and as to this judgment survived to Harrison: 1 Woerner on Admn., p. 733, § 344; 1 Lewin on Trusts, p. 261; Zebach v. Smith, 3 Bin. 72; Miller v. Meetch, 8 Pa. 417; Gallaher v. Gallaher, 6 Watts, 473; 7 A. & E. Ency. L. 200; Petigru v. Ferguson, 6 Rich. Eq. 378; Shoenberger's Est., 139 Pa. 132. Under the facts, established by the record, Harrison must continue as plaintiff in this judgment until by the record there is shown to be a vacancy in the office of executor, to wit, by death, renunciation, resignation or removal: 1 Lewin on Trusts, 251; Miller v. Meetch, 8 Pa. 417; Heron v. Hoffner, 3 Rawle, 393; Bowman's Ap., 62 Pa. 166; Beeber's Ap., 99 Pa. 596.

And a removal could be made only by the orphans' court in a direct proceeding had for that purpose, on petition, citation, hearing and decree, and only for the causes set forth by the acts of assembly: Webb v. Dietrich, 7 W. & S. 401; Cohen's Ap., 2 Watts, 175.

The register was without jurisdiction or authority to remove Harrison from his executorship in a direct proceeding: Miller v. Meetch, 8 Pa. 417; Bowman's Ap., 62 Pa. 166; Harberger's Ap., 88 Pa. 29; Miles v. Cook, 1 Grant, 58; Shomo's Ap., 57 Pa. 356; Bieber's Ap., 11 Pa. 156; Brubaker's Ap., 98 Pa. 21; Hostetter's Ap., 6 Watts, 244; 3 Rhone, O.C. Pr., p. 17, § 40.

A second grant, i.e., a grant of letters d.b.n.c.t.a. in the present case, under the facts as shown by the record, is absolutely void: 1 Woerner on Admn., p. 395, § 179; Munroe v. People, 102 Ill. 406; Rambo v. Wyatt, 32 Ala. 363; Matthews v. Douthitt, 27 Ala. 273; Petigru v. Ferguson, 6 Rich. Eq. 378; Grand v. Chaves, 15 Tex. 550; Hamilton's Est., 34 Cal. 465; Creath v. Brent, 3 Dana, 179; Croxton v. Renner, 103 Ind. 223; Lewis v. Brooks, 6 Yerg. 167; State v. Green, 65 Mo. 528; State v. Draper, 50 Mo. 24; Haynes v. Meeks, 20 Cal. 288; Landers v. Stone, 45 Ind. 404; Slade v. Washburn, 3 Ired. L. 557; Springs v. Irwin, 6 Ired. L. 27. Vick v. Mayor, 2 Howard (Miss.) 319.

And this second grant or grant of letters d.b.n.c.t.a. to James C. Packer, being void as a grant without jurisdiction or authority to make it, it can be impeached collaterally: Elliott v. Peirsol, 1 Peters, 328; Guaranty Trust & Safe Deposit Co. v. R.R., 139 U.S. 137; Thompson v. Whitman, 18 Wall. 457; Wall v. Wall, 123 Pa. 545; Camp v. Wood, 10 Watts, 118; Torrance v. Torrance, 53 Pa. 505; Bennett v. Hayden, 145 Pa. 586; Devlin v. Com., 101 Pa. 273; McPherson v. Cunliff, 11 S. & R. 422; Griffith v. Wright, 18 Ga. 173; Miller v. Jones, 26 Ala. 247: Bean v. Chapman, 73 Ala. 140; Quidort's Admr. v. Pergeaux, 15 N.J.L. 472; Ryno's Exr. v. Ryno's Admr., 27 N.J. Eq. 522; Kane v. Paul, 14 Peters, 33; Griffith v. Frazier, 8 Cranch, 24.

An appeal lies in this case, because, prior to the act of May 9, 1889, a writ of error would lie to a refusal to set aside an execution: Com. v. Judges, 3 Bin. 273; Cassel v. Duncan, 2 S. & R. 57; Harger v. Commissioners, 2 Jones, 251; Mackaness v. Long, 85 Pa. 158; Pontius v. Nesbit, 40 Pa. 309.

The terre tenants had a right to be heard in the court below and here on appeal: Wickersham v. Fetrow, 5 Pa. 260; Reigart v. Ellmaker, 6 S. & R. 44; Roberts v. Williams, 5 Whart. 170; Mevey's Ap., 4 Pa. 80; Fraley v. Steinmetz, 22 Pa. 437; Cadmus v. Jackson, 52 Pa. 295; Read v. Husulton, 27 Leg. Int. 198; Finney v. Crawford, 2 Watts, 294; Williams v. Morgan, 111 U.S. 684.

Mrs. Packerhs rights to her legacies under the will could be worked out only through the executors: State v. Moore, 18 Mo. Ap. 406; Guthrie v. Kerr, 85 Pa. 303.

James Scarlet...