Appeals — Review — Moot question — Satisfaction of claim refused by plaintiff.
1. An appellate court will not pass upon a moot question.
2. In a suit to recover on a surety bond, covering deposits in a closed bank, in which it is shown that the bank receiver has available for payment to plaintiff a sum in excess of the amount sued for and that plaintiff has refused payment, the question of the proper interpretation of the surety bond is moot and will not be considered upon appeal where the purpose of the Commonwealth was to obtain reconsideration of what was said in another case in its possible relation to other facts in other cases.
Argued May 26, 1937.
OPINION BY MR. JUSTICE LINN, June 25, 1937:
This case was tried without a jury under the Act of April 22, 1874, P. L. 109, 12 PS section 688, by the three learned judges of the court below after the record before us in Commonwealth ex rel. v. Globe Indemnity Co., 313 Pa. 498, 170 A. 690, was remitted. Judgment was entered for defendant.
The subject of controversy is part of a bank deposit. The court found as a fact that the receiver of the bank has in his possession available for payment to the Commonwealth a sum in excess of the amount claimed in this suit by the Commonwealth and that dividends in that amount payable to the Commonwealth have been declared and are awaiting payment by the receiver, but that the Commonwealth "has neglected and refused to collect said dividends." This fact is not disputed.
We understand from what was stated at the argument that the Commonwealth refused to take the payment offered in order, if possible, to have the court reconsider what was said by SIMPSON, J., in the course of the opinion filed in Com. ex rel. v. National Surety Co. et al., 310 Pa. 108, 164 A. 788, in its possible relation to other facts that may call for adjudication in another suit or suits and between other parties not now before us. We all agree that this should not be done until the issues and parties are properly in court. By receiving the dividends available the Commonwealth will have received the balance of its deposit.
The appeal is dismissed.