Mudge v. Williamsport , 1875 Pa. LEXIS 111 ( 1875 )

Mr. Justice Paxson

delivered the opinion of the Court, March 29th 1875.

The radical error underlying these entire proceedings was the filing of the report of the auditors in the Court of Common Pleas. The 29th sect, of the Act of 22d of March 1870 (Pamph. L. 535), entitled “A further Supplement to an Act entitled ‘An Act to incorporate the city of Williamsport,’ ” which is relied upon to sustain the action of the auditors, provides that they shall “ audit, settle and adjust the accounts of the city treasurer, school directors and overseers of the poor of the said city, and make report thereof to the city council,” &c. The 48th sect, of the Act of 1834, Pamph. L. 547, relating to county auditors, provides that said auditors shall make report to the Court of Common Pleas of said county, and by the 55th sect, of said Act it is further provided that the report of the auditors shall be filed among the records of the Court of Common Pleas of the respective county, and from the time of being filed shall have the effect of a judgment against the real estate of the officer who shall thereby appear to be indebted, either to .the Commonwealth or to the county.” The subsequent sections of the Act of 1834 provide for an appeal from the report of the auditor to the Court of Common Pleas; designate the time within which such appeal may be entered, and the terms upon which it shall be allowed, with authority to the court to direct a feigned issue to ascertain, by the verdict of a jury, the indebtedness of such officer. The supplement to the charter of the city of Williamsport, above cited, contains none of these provisions. It is true, the 29th sect, provides, that “the said auditors shall have the same authority that county auditors now have by law.” This is relied upon, by the defendants in error, to justify the action of the auditors in filing their report in the Court of Common Pleas. We do not regard this as the proper construction of said section. This is not a question as to the authority of the auditors, but of the effect of their report. The Act of 1870 is explicit, that such report shall he made to the city council. There is no provision in said act giving to the report, when made, the conclusive effect of a judgment. Nor is it made a lien. This could not well be otherwise, in the absence of any provision giving a right of appeal.

The case comes up upon two writs of error. One to inquire into the right of the auditors to file their report in the Court of Common Pleas; and the other to contest the right of said court to order a feigned issue upon it, and the manner and effect of the trial. We have already seen that the filing of said report in the court below was without authority of law. It follows, necessarily, that all the subsequent proceedings therein are erroneous, and must be reversed. This view of the case renders it unnecessary to notice in detail the numerous assignments of error.

The judgment is reversed upon each writ of error; and it is further ordered that the order of the Court of Common Pleas of Lycoming county, of the 18th of May 1872, authorizing and directing J. W. Hays and A. Nismeyer, a majority of the city auditors of the city of Williamsport, to file their report, as auditors of said city, in the Court of Common Pleas of said county, together with all proceedings in said causes, subsequent to the said order, be reversed and set aside.