Controller's 52nd Annual Report , 1915 Pa. Super. LEXIS 98 ( 1915 )

Opinion by

Head, J.,

A careful study of the opinion filed by president judge Shaper impels us to the conclusion that the reasons therein assigned for the judgment appealed from are sound and convincing. It is clearly pointed out that the first position taken by the appellant, arguing the right of the controller to go behind the audits of previous years — which audits had been long since finally confirmed and never appealed from — is wholly untenable. In relation to the interest paid by depository banks for the-use of moneys in the sheriff’s account, the differences between the cage at bar and Potter County v. Page, 53 Pa. Superior Ct. 268, are vital. In the case cited the money in controversy had been actually in the county treasury. It had been voluntarily and intentionally placed there by those who paid or donated it. The consideration which prompted the payment or gift of that money to the treasury was the use by the banks of funds which belonged wholly and entirely to the county and in which the treasurer personally had no interest whatever. That officer undertook to withdraw that money from the county treasury and appropriate it to his own use as if it were his. Manifestly, under such circumstances, the burden was on him to show by what right he could justify the taking from the treasury of money, prima facie, belonging to the county. His effort to show any right or title to that money entirely failed, and there remained nothing for him to do but to restore to the treasury the money he had taken from it under a misapprehension of his own rights.

In the present case it is, as to every item save perhaps one, clear that the sheriff was in no sense the fiscal officer of the county. By virtue of his office, in the execution of writs that came into his hands, he received large sums of money which belonged entirely to individual litigants and in which the county had no interest whatever. Whether or not he could rightfully receive, from the banks in which he deposited such moneys, interest for the use of the same is not a question raised by this record, but it is clear to us, as it was to the learned judge below, that no proper construction of the statute could give to Allegheny county the right to recover from the sheriff, moneys thus paid to him. When, as a result of the trial, it was ascertained what portion of the funds in the banks was made up of fees which the sheriff received for the execution of his writs, which fees did belong to the county; and when he was surcharged with the proportionate share of the interest paid by the banks, which could fairly be said to have been earned by the deposit of fees due the county, the appellant had obtained every benefit which could be claimed for it from a proper application of the doctrine of Potter County v. Page, supra.

The remaining questions turn upon the construction of several statutes, and, as we view it, there is nothing we could profitably add to the opinion filed. We conclude therefore the county of Allegheny has in no sense been aggrieved by the entry of the judgment appealed from, and the assignments of error are overruled.

Judgment affirmed.