Scott's Appeal

Supreme Court of Pennsylvania

Scott's Appeal

5 A. 671, 112 Pa. 427, 17 W.N.C. 440, 1886 Pa. LEXIS 295

CourtSupreme Court of Pennsylvania

DecidedMay 3, 1886

StatusPublished

Cited by22 cases

This text of 5 A. 671 (Scott's Appeal) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Scott's Appeal, 5 A. 671, 112 Pa. 427, 17 W.N.C. 440, 1886 Pa. LEXIS 295 (Pa. 1886).

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Opinion

Mr. Justice Paxson

delivered the opinion of the court, May 3d, 1886.

The first assignment alleges that the court below erred in granting the petition for a bill of review, and the second that the court erred in decreeing that the adjudication of June 13th, 1884 be opened.

It was conceded that the petition for a review laid no ground demanding relief as a matter of right. It was granted in the equitable discretion of the court. It is not denied that [436]*436the appellees had ample notice of the adjudication of June 13th, 1884, and might, had they desired, have attended in person or been represented by counsel. The excuse that they resided in Ireland and could not conveniente attend is of little weight, as it was entirely competent for them to have been represented, by an agent or attorney. There may be some reason for granting indulgence to' a party living abroad and who was in point of fact ignorant of the proceedings; but there is none where the parties had notice of what was going on and were moreover urged to look after their interests either in person, or by counsel. Any laches or negligence destroys the title to relief: Cremer’s Estate, 7 W. N. C., 544.

It was conceded that the petitioners were not' entitled to a review as a matter of right. Were they entitled to it as a matter of grace? The rule .was thus stated in Milligan’s Appeal, 82 Penn. St. Rep. at page 395. “It is well settled, that an account thus settled and confirmed can only be reviewed as a matter óf right for error of law apparent on the face of the record, or for new matter which has arisen since the decree. As a matter of grace a review may be granted for new proof, discovered after the decree, which proof could not possibly have been used at the time when' the decree was made;” citing Story’s Eq. § 404: Riddle’s Estate, 7 Harris, 431; Russell’s Admr’s Appeal, 10 Casey, 258; Hartman’s Appeal, 12 Id., 70.

The petition in this case does not come within the rule thus stated. It does not point out any error of law appearing on the face of the decree, nor show that any new.matter has arisen, or even that any new proofs have come to light since the decree. The principal ground of complaint is that the accountant was allowed a credit for the partial loss on a mortgage, which he had transferred from his account as executor to that of his account as a trustee. His claim for this allowance was.made at the adjudication in. 1883, and was then passed upon by the court. Whether the credit should have been allowed had all the facts been before the court then which were before it upon the review, we are not called upon to say. It is enough that it was passed upon then in a regular and orderly way, and the petitioners having failed to make their objections then, are precluded from doing.so now. All the facts-which they have since brought forward were known, or might have been known to them then. There is no allegation.-of after discovered evidence which they could not have produced at the original adjudication. There is only the allegation that they did not attend to their business because it was inconvenient to do so. This is not sufficient. They cannot have a solemn adjudication opened, and the public time [437]*437consumed for such á reason. Something is due to' the ’finality of judicial proceedings. . . . ■

The decree is reversed'at the costs of the appellee, and it is ordered that the' adjudication of June 13th, 1884, be confirmed.

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Mr. Justice Paxson

delivered the opinion of the court, May 3d, 1886.

The first assignment alleges that the court below erred in granting the petition for a bill of review, and the second that the court erred in decreeing that the adjudication of June 13th, 1884 be opened.

It was conceded that the petition for a review laid no ground demanding relief as a matter of right. It was granted in the equitable discretion of the court. It is not denied that [436]*436the appellees had ample notice of the adjudication of June 13th, 1884, and might, had they desired, have attended in person or been represented by counsel. The excuse that they resided in Ireland and could not conveniente attend is of little weight, as it was entirely competent for them to have been represented, by an agent or attorney. There may be some reason for granting indulgence to' a party living abroad and who was in point of fact ignorant of the proceedings; but there is none where the parties had notice of what was going on and were moreover urged to look after their interests either in person, or by counsel. Any laches or negligence destroys the title to relief: Cremer’s Estate, 7 W. N. C., 544.

It was conceded that the petitioners were not' entitled to a review as a matter of right. Were they entitled to it as a matter of grace? The rule .was thus stated in Milligan’s Appeal, 82 Penn. St. Rep. at page 395. “It is well settled, that an account thus settled and confirmed can only be reviewed as a matter óf right for error of law apparent on the face of the record, or for new matter which has arisen since the decree. As a matter of grace a review may be granted for new proof, discovered after the decree, which proof could not possibly have been used at the time when' the decree was made;” citing Story’s Eq. § 404: Riddle’s Estate, 7 Harris, 431; Russell’s Admr’s Appeal, 10 Casey, 258; Hartman’s Appeal, 12 Id., 70.

The petition in this case does not come within the rule thus stated. It does not point out any error of law appearing on the face of the decree, nor show that any new.matter has arisen, or even that any new proofs have come to light since the decree. The principal ground of complaint is that the accountant was allowed a credit for the partial loss on a mortgage, which he had transferred from his account as executor to that of his account as a trustee. His claim for this allowance was.made at the adjudication in. 1883, and was then passed upon by the court. Whether the credit should have been allowed had all the facts been before the court then which were before it upon the review, we are not called upon to say. It is enough that it was passed upon then in a regular and orderly way, and the petitioners having failed to make their objections then, are precluded from doing.so now. All the facts-which they have since brought forward were known, or might have been known to them then. There is no allegation.-of after discovered evidence which they could not have produced at the original adjudication. There is only the allegation that they did not attend to their business because it was inconvenient to do so. This is not sufficient. They cannot have a solemn adjudication opened, and the public time [437]*437consumed for such á reason. Something is due to' the ’finality of judicial proceedings. . . . ■

The decree is reversed'at the costs of the appellee, and it is ordered that the' adjudication of June 13th, 1884, be confirmed.

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5 A. 671, 112 Pa. 427, 17 W.N.C. 440, 1886 Pa. LEXIS 295, Counsel Stack Legal Research, https://law.counselstack.com/opinion/scotts-appeal-pa-1886.

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