Opinion
December 9, 1938.
March 22, 1939.
Appeals — Moot question — Payment of award — Refusal to sustain exception to auditor's fee — Jurisdiction — Superior Court — Supreme Court.
Where an award to appellant by an auditor was paid before the appeal was taken, the question was moot; and, where the only matter for review when the appeal was taken, was the refusal to sustain an exception to auditor's fee of $2,000, the appeal should have been taken to the Superior Court, and, therefore an appeal to the Supreme Court was certified to the Superior Court.
Argued December 9, 1938.
Before KEPHART, C. J., SCHAFFER, MAXEY, DREW, LINN, STERN and BARNES, JJ.
Appeal, No. 167, Jan. T., 1938, from decree of O. C. Northampton Co., dated November 1, 1937, in Estate of Warren A. Wilbur, deceased. Appeal certified to Superior Court.
Audit of account of administrators.
Exceptions to report of auditor dismissed and report confirmed absolutely, opinion by McKEEN, J. Exceptant appealed.
Error assigned was dismissal of exceptions.
Allen S. Olmsted, 2nd, with him Herbert J. Hartzog and Francis C. Brown, for appellant.
Leighton R. Scott, for appellee.
A motion to quash was made by the administrators of Warren A. Wilbur for violation of various rules of this Court and on the ground that — the award to appellant having been paid before the appeal was taken — the question was moot.
Appellant's answer to the motion to quash admits that payment was received, as averred in the motion, but asserts that the appeal should not be quashed for that alone; this contention is based on the fact that, in addition to complaining of the form in which the award to appellant had been made, a second point is presented for review, to wit: the refusal to sustain appellant's exception to the auditor's fee of $2,000.
The payment to, and acceptance by, appellant of the dividend awarded, of course makes the first question moot.
As the only matter for review, when the appeal was taken, was the refusal to sustain an exception to the auditor's fee of $2,000, the appeal should have been taken to the Superior Court: section 7, Act of June 24, 1895, P. L. 212, as amended, 17 PS section 184.
The appeal is certified to the Superior Court.