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GLASS v. REILLY (ET AL. (01/04/66)

decided: January 4, 1966.

GLASS
v.
REILLY (ET AL., APPELLANT)



Appeal from decree of Court of Common Pleas of Montgomery County, June T., 1960, No. 13, in case of Samuel M. Glass v. Peter J. Reilly and County of Montgomery.

COUNSEL

Alonzo Horsey, Assistant Solicitor, with him Roger B. Reynolds, Solicitor, for appellant.

Kingsley A. Jarvis, with him Leonard F. Markel, for appellee.

Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Mr. Chief Justice Bell took no part in the consideration or decision of this case.

Author: Per Curiam

[ 419 Pa. Page 548]

Samuel M. Glass, Sheriff of Montgomery County for three successive terms (January 5, 1944 to January 3, 1956), received, as sheriff, funds applicable to unfinished business of his office and funds owing to litigants, attorneys and others, for which no demand had been made by the parties entitled thereto. Upon leaving office, Glass following the custom of his predecessors, retained these funds in a separate bank account entitled "Samuel M. Glass, Sheriff". He honored certain proper demands made by his successor, Sheriff Peter J. Reilly, and others, so that the balance remaining in the account totaled on June 22, 1960, $35,119.87. On that date, his successor, having demanded this balance, Glass turned the funds over to Clay C. Hess,

[ 419 Pa. Page 549]

Treasurer of Montgomery County, to be held in a special escrow account.

Glass then instituted the present action in equity against Reilly and the County of Montgomery to determine (a) the question of his legal ownership to whole or part of the fund; (b) his right to possession, custody and control of the fund; and (c) the respective legal rights of Montgomery County, Commonwealth of Pennsylvania, and other individuals in the disputed fund.

It was Glass's claim that he was entitled at least to the following amounts: (a) $2,750.65 as unpaid mileage on unfinished writs; (b) $2,600 as counsel fees for services in the present equity action; and (3) $2,500 for his, Glass's efforts in connection with the present equity action.

After hearing and audit ordered by the court below, the chancellor made the following adjudication:

"The plaintiff has failed to establish by the weight or fair preponderance of the evidence his full claim of $2,750.65 for unpaid mileage on unfinished writs. It appears from the examination prepared by the court appointed auditors that 15,755 miles were traveled by the sheriff or his deputies on uncompleted outstanding writs. It does not appear that this mileage was actual mileage or merely paper mileage. In an effort to be fair in this quest to do justice in this massive maze of accounts, we feel constrained to allow plaintiff ten cents a mile on the mileage found by our auditors. We will, therefore, award plaintiff the sum of $1,575.50 for mileage from the disputed fund.

"The claim for $2,600 as counsel fee must be reduced. Undoubtedly, counsel for plaintiff has worked arduously and effectively for many hours in plaintiff's behalf to settle the ownership of the disputed fund, but it does not follow that counsel is entitled ...


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