Commonwealth ex rel. Ross Township v. Gruver

Opinion by Orlady, J., This suit was brought on the official bond of Peter Gruver, a tax collector of Ross township, Monroe county, for the year 1891. The condition of the bond is as follows : “ Now the condition of this obligation is such that if the said Peter Gruver shall well and truly collect and pay over or account for, according to law, the whole amount of taxes charged and assessed in the duplicates which shall be delivered to him, then this obligation to be void, otherwise to be and remain in full force and virtue.” The other defendants are the sureties of the collect- or. The plaintiff recovered a verdict in the court below from which the defendants appeal. The statement does not, as urged by the appellant, lack the essentials of a good cause of action. Its averments are sufficient, and it assigns with certainty and precision the failure to pay or account for the $ 125.15, which was claimed as the balance of the taxes in the duplicate for 1891. The omission to declare the manner in which the judgment should be entered in order to secure the proper amount to the school district was a subject for amendment, and after a trial on the merits, verdict and judgment, there being no demurrer, no such defect is fatal unless it is shown to have injuriously affected the trial; the proper amendment will be considered to have been made: Chapin v. Cambria Iron Co., 145 Pa. 478; Eckert v. Schoch, 155 Pa. 530; Shryock v. Baschore, 82 Pa. 159; Com. v. Press Co., 156 Pa. 516. We would [562] have the power to correct it so as to make it conform to. the statute: Com. v. Yeisley, 6 Pa. Superior Ct. 273. The action was properly brought in assumpsit: Com. v. Yeisley, supra; Com. v. Stambaugh, 164 Pa. 437; Com. v. Comrey, 174 Pa. 355. The township auditor’s settlement of the tax collector’s accounts was but one step in fixing the liability of the collectors, nevertheless, by not taking an appeal from their decision to the court of common pleas, as provided by law, he elected to make that step a final one and to be bound by it. We cannot review that settlement now: Swatara Twp. School Districts Appeal, 1 Pa. Superior Ct. 502; Com. v. Titman, 148 Pa. 168; Com. v. Sweigart, 9 Pa. Superior Ct. 455. At the time of payment of the 1166 there was no agreement or direction given by the debtor as to which indebtedness it should be applied, and there being due from the collector a balance on a former duplicate, the school district creditor had the right to appropriate it to the least secured debt; the debtor not appealing from the auditor’s settlement is presumed to have assented to the application thus made of his payment: Ege v. Watts, 55 Pa. 321; Louisville Cotton Mills Co. v. Fritz, 155 Pa. 144; Com. v. Stambaugh, 164 Pa. 437; McCartney v. Buck, 12 Atlantic R. 717, note; The offers to show payments made by the collector that were prior in date to the auditors’ settlement, and the ineffectual attempt before the auditors to change the settlement were properly refused. This was resorting to only another method of destroying the effect of the auditors’ settlement which can be successfully attacked, but solely in the way pointed out by the statute — an appeal to the court of common pleas. The judgment is affirmed.