Galway's Appeal

34 Pa. 242

• Court: Supreme Court of Pennsylvania
• Decided: July 1, 1859
• Status: Published

Opinion

The opinion of the court was delivered by

Strong, J.

The real estate of Francis Seitz having been sold at sheriffs sale, and the proceeds brought into court for distribution, an auditor was appointed to marshal them among the lien-creditors. The liens upon the fund were far greater in amount than the entire proceeds of the sale. The contest, was, therefore, entirely between the lien-creditors. Galway, the appellant, held the first judgment. The auditor received the testimony of Seitz to show that a part of Galway’s judgment had been paid, and the court confirmed his report founded on that testimony. This is supposed to have been erroneous, and hence this appeal. Was then the debtor an incompetent witness? He was no party to the distribution. In any event the creditors were entitled to all the money. If, instead of deciding for himself how much was due upon the first judgment, the auditor had reported an issue to the Common Pleas to determine that fact, it is clear that, on its trial there, the execution debtor would have been a competent witness for either creditor. This was decided in Stewart v. Stocker, 1 Watts 135, and in Smith’s Executors v. Wagenseller, 9 Harris 494. Why not, when the question of fact is submitted to the auditor instead of a jury ? The interest of the witness, if any he has, is the same in each tribunal. The mistake of the appellant is in the supposition that the report of the auditor is conclusive upon him, and establishes the payment of his judgment, in á.ny proceeding which he may institute to recover from Seitz, the debtor, what he failed to obtain from the fund in court. This is clearly not so. The auditor’s distribution is a proceeding between the lien-creditors, not between the appellant and the debtor. It is an estoppel only between him and the other lien-creditors. The debtor is not, by his testimony, discharging himself from any liability. The case must not be confounded with one where the debtor is called to increase, by his own oath, a fund for the payment of his debts. Here, he was called to aid in determining how much of the fund should be distributed to one creditor, and how much to another, leaving his own indebtedness the same, no matter what the auditor’s report might be. There was no error, therefore, in admitting the witness to testify.

Nor was the subject-matter of his testimony open to exception. He had assigned a judgment to the appellant. The assignment was in writing, and under seal. It stated that it was “for value received.” The testimony of the witness was, that it was made in part payment of the appellant’s judgment against him. This was no contradiction of any part of the assignment, as is argued here. It was no denial that the assignment was for value received. It only explained what that value was. The order of the court confirming the auditor’s report was, therefore, correct.

The decree of the Court of Common Pleas is affirmed, and the appellant is ordered to pay the costs.