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FERGUSON v. BOLE ET AL. APPEALS SAMUELS (01/12/51)

January 12, 1951

FERGUSON
v.
BOLE ET AL. APPEALS OF SAMUELS



COUNSEL

Louis Vairs, Pittsburgh, for appellant.

Theodore A. Tenor, Beaver Falls, for appellees.

Before Hirt, Acting P. J., and Reno, Dithrich, Ross and Arnold, JJ.

Author: Dithrich

[ 168 Pa. Super. Page 306]

DITHRICH, Judge.

In this action to quiet title to certain real estate situate in Beaver Falls, Pennsylvania, appellants appeal from an order of the court below directing them to pay the costs. They contend that they were 'interveners' in the action and, as such, could be assessed only with the costs which accrued after their intervention. That is the sole question for argument under Rule 22. The question turns on whether they were 'interveners' or 'intermeddlers', as found by the learned president judge of the court below.

The facts, which are not in controversy, briefly stated are as follows. John M. Ferguson, appellee, became the purchaser of the premises in question by deed

[ 168 Pa. Super. Page 307]

    from the Beaver County Commissioners, the Commissioners having acquired title thereto by deed from the Treasurer of Beaver County, the property having been sold at Treasurer's sale as the property of James R. Bole, who died testate September 18, 1935, a resident of Allegheny County, Pennsylvania.

The action named as defendants the executor of the last will and testament of James R. Bole and all of his heirs, among whom was his wife, Eva Bole, who owned an undivided one-half interest in the property. Her whereabouts being unknown at the time of the commencement of the action, she was served by publication, the last publication being made on November 6, 1948. On December 6, 1948, Newton M. Samuels and Wilson J. Samuels, appellants, filed an answer to the complaint and in paragraph 13 thereof they claim that they '* * * are parties in interest hereto by reason of succession to and conveyance from Eva E. Bole, widow, of all her right, title and interest to the premises described in Paragraph 6 of the Complaint by virtue of a deed dated December 1, 1948 from the said Eva E. Bole * * *'

Plaintiff filed preliminary objections to the answer, and defendants having alleged in paragraph 15 of their answer that there was a variance between the description set forth in the deed to the County Commissioners and the description in paragraph 6 of the complaint, Judge Sohn, who heard the argument on the preliminary objections, said in an opinion overruling them: '* * * the only question to be adjudicated at trial, relates to the identity of the land described in the sixth paragraph of the complaint.' At the trial before McCreary, P. J., the jury found in favor of plaintiff: 'Costs to be paid by Newton M. Samuels and Wilson Samuels, defendants and intervenors.'

Exceptions to the bill of costs, styled 'Appeal from Taxation of Costs,' were filed ...


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