Mould v. Mould , 1905 Pa. Super. LEXIS 191 ( 1905 )

Opinion by

Morrison, J.,

This is a contest over the distribution of the proceeds of the sale of personal property by a receiver, under the decree of the court. There are four classes of claimants: 1. The assignee of certain wage claimants contending for a preference against the entire fund, and its claims, if preferred, will take the entire fund. 2. Landlord’s claims for rent. 3. A claim under and by virtue of a certain foreign attachment. 4. General creditors who claim pro rata out of the fund for distribution.

The learned auditor, upon careful and elaborate findings of fact, conclusions of law and citations of authorities, held that the wage claims were not entitled to preference because of the want of notice, given prior to the sale, as required by the Act of assembly of April 9, 1872, P. L. 47, and the supplements thereto. And he, therefore, distributed the money, first, to the payment of the rent claims and then pro rata to all of the remaining creditors.

The learned court below sustained the exceptions to the auditor’s report and entered a decree in favor of the assignee of the wage claims and this decree gives rise to the following exceptions : 1. “ The court erred in holding as follows ” : “We do not, however, agree with the auditor that a notice by a wage claimant is necessary in case of a receivership.” 2. “ The court erred in holding as follows ” : “We are of opinion that the assignee of the wage claims is entitled to preference and that the exceptions of the First National Bank with reference thereto, must be sustained.” 3. “ The court erred in not holding the claim of H. C. Frick to be a preferred claim upon the fund in the sum of $386.87.” 4. “ The court erred in not holding that II. C. Frick was entitled to the sum of $6.58 as a general creditor.”

A careful consideration of the findings of fact, conclusions of law and reasons given by the auditor, and the opinion of the learned court below, inclines us to the opinion that the learned auditor reached a correct conclusion and that the learned court erred in sustaining the exceptions to the auditor’s report and in awarding the fund to the assignee of the wage claims. The auditor has so fully covered the ground in his report that we do not think it necessary or profitable to discuss the case or review the authorities. In our opinion the sale by a receiver, under the decree of the court, is, in effect, under execution process and that wage claimants lose their right of preference by failing to give notice prior to the sale.

The assignments of error are sustained and the decree -is reversed, and it is now- ordered and decreed that the fund be distributed in accordance with the schedule prepared and- attached by the learned auditor to his report. And it is further ordered that the appellee pay the costs of this appeal.