Irwin's Appeal , 1840 Pa. LEXIS 253 ( 1840 )

The opinion of the Court was delivered by

Kennedy, J.

From Hise’s Appeal, (5 Watts, 157,) it appears, that in construing the act of 1832, giving the right of appeal from the decrees of the Orphans’ Court to the Supreme Court, it had been frequently ruled, that a decree of the former Court would only be reversed for an exception taken in that Court, and not for one taken for the first time in the Supreme Court, pending the appeal. And in that case, after the passage of the act of 1835, giving power to the Supreme Court in all cases of appeal from the definitive sentence or decree of the Orphans’ Court, to hear and determine the same, as to right and justice may belong, and to refer the same to auditors, as it may think proper, it was still held to be good as a general rule, and that the legislature thereby only intended to vest in the Supreme Court a discretionary power to refer the accounts to auditors for further investigation, when it is apparent injustice has been done; and not to annul the principle laid down as a general rule previously to Plise’s Case. And in Mylin’s Appeal, (7 Watts, 64,) the same question was presented that arises here. Christian Mylin, one of the appellants there, filed no exceptions to the report of the auditors within the time prescribed by a rule made by the Court below on the subject, but did so afterwards, before he took his appeal, as the appellant has done here; and this Court held, first, that the Orphans’ Court had power to make and adopt rules for regulating its own practice ; and, second, that a rule, that no exception to a report of auditors should be received, unless the same were filed within ten days, was valid: and further, that this Court, on the appeal, would not act upon or notice exceptions filed below after the time allotted for that purpose by the rules of the Court had expired, unless they were filed by the special order of the Court belowor in cases when it plainly appeared that the rules of equity and justice had been violated: and accordingly, no order of the Court below appearing to have been obtained, giving leave to file the exceptions, which were filed out of time according to the standing rule of the Court on the subject, and no such violation of the rules of equity and justice appearing from the face of the proceedings to have taken place, this Court refused to hear Christian Mylin in support of his exceptions. The present case thfen appearing to be similar in every 'respect to the case of Christian Mylin, must be considered as ruled by it. The appellant therefore cannot claim to be heard in support of the exceptions ; and the decree of the Orphans’ Court is accordingly affirmed.

Decree affirmed.