Hoch's Appeal

72 Pa. 53, 1872 Pa. LEXIS 199

Opinion

The opinion of the court was delivered, by

"Williams, J.

— It is clear that the appeal in this case must be dismissed. If the absolute confirmation of the auditor’s report is to be regarded as a decree of distribution, then the appeal, not having been taken within the twenty days allowed by the act, was too late: Dawson’s Appeal, 3 Harris 480. But if it cannot be so regarded, then the appeal was premature. The whole proceedings were manifestly erroneous and void for want of jurisdiction. The money was not in court when the auditor was appointed to make distribution, and, so far as appears, is still in the hands of the sheriff. The fund not being pdthin its grasp, the court had no power, even with the agreement of the parties interested, to decree its distribution: Williams’s Appeal, 9 Barr 267; Masser v. Dewart, 10 Wright 534; Atkins’s Appeal, 8 P. F. Smith 86. Nor was the defect cured by the Act of 28th June 1871, relating to the distribution of moneys r.aised by sheriff’s sales, P. L. 1376, which was not intended to be retroactive.

Appeal quashed. ■