Pringle v. Smith

• Decision Date: 12 April 1926
• Docket Number: 28
• Citation: 133 A. 33,286 Pa. 152
• Parties: Pringle et al. v. Smith, Appellant
• Court: Pennsylvania Supreme Court

133 A. 33

Pringle et al. v. Smith, Appellant

286 Pa. 152

No. 28

Supreme Court of Pennsylvania

April 12, 1926

Argued March 19, 1926

Appeal, No. 28, March T., 1926, by defendant, from order of C.P. Cambria Co., Sept. T., 1924, No. 219, granting new trial in case of Della Pringle et al. v. Howard Smith. Affirmed.

Assumpsit for purchase money of real estate. Before REED, P.J. specially presiding.

Verdict for plaintiffs. Subsequently the court dismissed defendant's motion for judgment n.o.v., and granted his motion for a new trial.

Error assigned was refusal of defendant's motion for judgment n.o.v., quoting record.

The order appealed from is affirmed.

Ray Patton Smith, with him Leonard Sobel, for appellant.

Henry W. Storey, Jr., with him Alvin Sherbine, for appellees.

Before MOSCHZISKER, C.J., FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.

OPINION

PER CURIAM:

Plaintiff and others, being "the legal heirs of Elizabeth Myers," deceased, agreed to sell a certain piece of real estate to defendant, the contract expressly providing that "The conditions of this agreement are subject to the approval of the orphans' court for the sale of any interests of any minor children in and to said described premises"; at the signing of the contract, defendant paid $500 on account of the purchase money, and took possession of the premises in question, which he still holds. An application was made to the orphans' court, by the administrator of Elizabeth Myers, deceased, for leave to sell the property, in accordance with the terms of this contract to pay the debts of decedent; and, in that proceeding, although the interests of the minor children were not represented, the court granted the prayer of the petition. Demand was made on defendant to pay the balance of the purchase money, and, when he declined, an action in assumpsit was brought against him for the amount due. Plaintiff recovered a verdict; defendant filed a motion "for a new trial and for judgment n.o.v."; the court below granted the first and refused the second, saying, inter alia, "We are of opinion that a failure to petition the court for appointment of a guardian ad litem and have such appointment made prior to the giving of notice provided for in the act of assembly, was a fatal defect in the proceeding [before the orphans' court to obtain authority to sell the property in controversy] and renders the deed [tendered by plaintiffs to defendant] invalid." To this the court added: "We observe, however, from the testimony, that defendant still retains possession of this property and feel therefore that plaintiff should have opportunity to promptly...