Lummis v. Big Sandy Land & Manufacturing Co.

Citations

• 188 Pa. 27
• 41 A. 319
• 1898 Pa. LEXIS 569

Syllabus

<p>Trial by court without a jury — Constitutional law — Constitution, article Y. section 27 — Act of April 22, 3874.</p> <p>The Act of April 22,1874, P. L. 109, regulating the trial of cases by the court without a jury, in so far as it excepts from the benefit of the act “ those acting in a fiduciary capacity ” violates article V. section 27, of the constitution of 1874, which declares: “ The parties by agreement filed may in any civil case dispense with trial by jury, and submit the decision of such case to the court having jurisdiction thereof.”</p> <p>Reference — Trustees—Act of May 14, 1874.</p> <p>Under the Act of May 14, 1874, P. L. 166, which declares that “in all civil suits or cases which the parties may legally, by agreement in writing, submit to the decision of the courts, .... the parties may, in like manner, by written agreement, submit the case to the decision of any person learned in the law, who is authorized to act as an attorney in the Supreme Court of this state,” parties acting in a fiduciary capacity may agree to a reference.</p> <p>Reference — Trustees—Estoppel.</p> <p>A reference under the Act of May 14, 1874, P. L. 166, was made a rule of court, and after confirmation of the referee’s report one o£ the parties sought to set the reference aside, alleging that he was a trustee and had no authority to consent to it. The alleged beneficiaries had assented to the reference and co-operated with the alleged trustee in the proceeding until after the report was confirmed. Held, that, under these circumstances, even if trustees were not embraced in the act, neither the beneficiaries nor the trustee would be permitted to question the validity of the reference.</p> <p>Attachment execution — Garnishee’s counsel fees.</p> <p>In an attachment execution whore answers are filed and the cause is tried, a counsel fee to the garnishee in excess of $10.00 may be allowed by the court and taxed as part of the costs. In this case a counsel fee of $250 was allowed. „