Constine's Appeal

1 Grant 242

• Court: Supreme Court of Pennsylvania
• Decided: July 1, 1855
• Status: Published

Opinion

The opinion of the court was delivered by

Lewis, C. J.

— This is an appeal by John Constine from the distribution of the proceeds of his own real estate sold at sheriff’s sale. The auditor’s report shows that the proceeds were not sufficient to pay all the lien creditors. It is not pretended that the claims of tbe creditors were unjust; nor does it appear, from any part of tbe record, that Jobn Constine is, in any event, entitled to any part of tbe money. It does not appear that be claimed any of it, or took any part in tbe proceedings in tbe court below. He filed no exceptions whatever to tbe auditor’s report. His special exception here is that tbe court bad no right to appoint an auditor, and decree distribution-, “ when there was no fund in court.” If this exception bad been made in tbe court below, tbe necessary entries, showing that tbe money was in court, could have been made ; or if tbe money was not in court, tbe distribution would have been suspended until,-it was brought there! To make this exception after final decree, is to make it out of time. To make it here, without presenting it to tbe court below, is to make it in the wrong place. As tbe record stands, we are bound to presume that tbe money was within the grasp of tbe court. Tbe ease of William’s Appeal has no application. In that case, it appeared affirmatively that tbe money had in part been distributed by the sheriff at his own peril, and was, therefore, not in the power of tbe court. 9 Barr, 27 9.

There is no error in tbe decree of distribution.

Decree affirmed.