178 A. 386
Supreme Court of Pennsylvania.March 26, 1935.
April 22, 1935
Appeals — Review — Order refusing payment of fund to assignee of plaintiff — Claim not contested — Remitting record for proper order.
On appeal from the refusal of the court below to award to the assignee of plaintiff the balance, after payment of counsel fees, of a fund determined to be due plaintiff on an accounting with defendants, the record was remitted to the lower court for the purpose of making the order prayed for, where it appeared that the correctness of the assignee’s position was not contested, and the court below stated in its opinion that, upon reconsideration of the matter, it would have entered the order prayed for had it retained jurisdiction.
Argued March 26, 1935.
Before FRAZER, C. J., SIMPSON, SCHAFFER, MAXEY, DREW and LINN, JJ.
Appeal, No. 119, March T., 1935, by The First National Bank, from judgment and decree of C. P. Venango Co.,
Page 264
April T., 1926, No. 2, in equity, in case of O. B. Bracht v. W. L. Connell and H. C. Laub. Decree reversed.
Petition for declaration of ownership of funds.
The opinion of the Supreme Court states the facts.
Petition dismissed, opinion by McCRACKEN, P. J. Petitioner appealed.
Error assigned was dismissal of petition.
F. Harold Gates, for appellant.
No brief filed for appellee.
PER CURIAM, April 22, 1935:
This appeal, by the First National Bank of Oil City, is from the refusal of the court below to award to it the balance, after payment of counsel fees, of a fund determined to be due O. B. Bracht on an accounting of his partnership with W. L. Connell and H. C. Laub. The bank claims this sum by virtue of written assignments made to it by Bracht.
The correctness of appellant’s position is not contested, and the court below states in its opinion that upon reconsideration of the matter it would have entered the order prayed for, except for the fact that the taking of the appeal had ousted its jurisdiction by removal of the record. We are of opinion that the record should be remitted to the court below for the purpose of entering an order allowing to the First National Bank the balance of the fund remaining after payment of reasonable counsel fees to the attorneys for Bracht.
Decree reversed, costs to be paid from the fund so realized.
Page 265
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