Sankey's Appeal

The opinion of the court was delivered July 3d 1867, by Agnew, J. — The 1st and 2d errors assigned, which may be considered together, are unfounded. The rule made out and issued by the clerk of the-Orphans’ Court fixed a day certain, “ the fourth- Monday of January next,” to come into court and accept or refuse the premises at the valuation. The objection that no day certain was fixed, according to the 40th section of the Act of 29th March 1832, is founded upon the mere note of the confirmation and order for the rule entered by the court on the back of the inquisition. Had the clerk omitted to carry out the order fully, by fixing a day of appearance, there might be some ground of complaint. The note of the judge is but a minute for the information of the clerk, who afterwards makes up the record in full. It is a common practice in many districts for the judge who has the papers before him for inspection to minute the orders upon [495] them. The clerks are often not apt or experienced. The clerk then makes up his entry in the docket at full length. It is an error to suppose that the clerk must transcribe the judge’s minute, with all the abbreviations and ellipses. The docket entries are not printed for us, but the rule to accept or refuse is, and that fixes a day certain. The third error complains that the estate was decreed to Jacob Sankey, the eldest son, four days after the return day of the rule. But the rule was returned duly served, all the heirs were called in open court, and no one appeared to accept or to offer a higher price, and the premises were accordingly duly adjudged to Jacob. Monday of the term being fixed, the parties were bound to attend before the court as other suitors do until called. The Common Pleas, Quarter Sessions, Oyer and Terminer, and Orphans’ Court, convene at the same time and place before the same judges, and the business of all proceed pari passu, except when special days are .fixed for special business. The parties being duly notified, must continue in court until called or dismissed. If the business could not be taken up on Monday, it must await till the court is ready to hear it, or dispose of it. The decree of the premises was therefore good on the fourth day. The 4th and 5th assignments.of error involve the same question. The rules taken to show cause why the decree allotting the lands to Jacob Sankey should not be vacated, were applications to the sound discretion of the court to set aside its own act. The exercise of such a discretion is generally not reviewable. But as the ground set forth for obtaining the rules was a want of notice of the partition, we may regard this as the substantial error assigned. The service of the notices appears to be regular and according to the order of the court, except in one particular. The rule to appear, and accept or refuse the premises, was ordered to be published in two newspapers, while the return of service and aflidavit is of publication in but one paper. In Ragan’s Estate, 7 Watts 438, it was decided that the averment of the record is primá, facie evidence of the service of notice, but not conclusive; and this court set aside the proceedings in partition on an appeal, because it appeared that in fact no notice was given to one of the parties; and this, notwithstanding it was alleged in the petition that he had been advanced his share of the estate in money. We are, therefore, brought to determine whether this irregularity in the service on part of the sheriff, in this cáse, is fatal upon an appeal. We think it is not. The 52d section of the Act of 29th March, 1882, relating to Orphans’ Courts (the same which regulates proceedings in partitions), provides for notice to be given to heirs, legatees or distributees, of any proceedings affecting them in the Orphans’ Court. It directs personal notice to parties resident without the county, if the court deem it reasonably practi [496] cable, but if not, then “in such one or more newspapers as in the opinion of the court will be most likely to meet the eye of those entitled to notice.” The number of newspapers in which publication shall be made is therefore discretionary — it may be one or it may be more. In this case the court went beyond the requirement of the act in ordering a copy of the paper containing the notice to be mailed to the post-office address of each non-resident party ; and the sheriff returned that he had mailed a copy to each. The court having the power to make the original order for publication in one newspaper only, there is no reason why its ratification of the publication in but one, should not be held to be good. The return was of a publication strictly according to law, and we cannot say the court abused its discretion in accepting the return and reducing the number of newspapers, so long as it still continued wjthin the legal limit. A publication in one and mailing a copy were clearly quite as good as a new publication in two. The effect of ratification is well stated by Justice Rogers in Klingensmith v. Bean, 2 Watts 486, in which it was held that confirmation of an administrator’s sale of real estate after a term had intervened, was tantamount to a continuance of the order of sale, and ought to be held good even upon an appeal. See also Rham v. North, 2 Yeates 118; and Snyder’s Lessee v. Snyder, 6 Binn. 478. Upon the whole case we discover no fatal error, and the decree of the Orphans’ Court is therefore affirmed.