
    Constine’s Appeal.
    1. A debtor who takes no part in tbs court below in proceedings for the distribution of the proceeds of sale of his real estate under execution, and files no exceptions to the auditor's report, cannot by appeal, take advantage of exceptions filed by creditors, which’ the court dismissed, and upon the hearing of which confirmed the report absolutely.
    2. An exception on the ground that the court had no right to appoint an auditor, and decree distribution when there was no fund in court, is too late after final decree, in the court below, and cannot be taken in the Supreme Court on an appeal.
    Appeal from the decree of the court of Common Pleas of Luzerne county, distributing the money made from the sheriff’s sale of appellant’s real estate.
    John Constine’s real estate having been sold by the sheriff, April 2, 1853, under a venditioni exponas, and the writ returned on the 4th of.April, the court appointed an auditor to distribute the proceeds. The proceeds were insufficient to pay all the lien creditors; Constine was not entitled to, and did not claim, any part of the fund, and did not take any part in the proceedings for distribution. The auditor having filed his report, May 24, 1853, exceptions were filed on the part of some of the creditors, which were not finally disposed of till April 14; 1854, when the court dismissed the exceptions, refusing, at the same time, a motion to recommit, which had been made by the excepting creditors, and confirmed the auditor’s report absolutely. No appeal was taken by the creditors who excepted ; but Constine took this appeal, and assigned for error the dismissal of the exceptions filed 'by the creditors, the confirming of the auditor’s report, the refusal to recommit, and the appointment of an auditor, and decreeing distribution, when there was no fund in court.
    There was nothing upon the record to show positively that the money had been paid into court; but the venditioni exponas was duly returned by the sheriff, as appeared by the docket entries, and by the return itself.
    
      H. and C. E. Wright, for appellant.
    
      Wood, for appellee.
   The opinion of the court was delivered by

Lewis, C. J.

— This is an appeal by John Constine from the distribution of the proceeds of his own real estate sold at sheriff’s sale. The auditor’s report shows that the proceeds were not sufficient to pay all the lien creditors. It is not pretended that the claims of tbe creditors were unjust; nor does it appear, from any part of tbe record, that Jobn Constine is, in any event, entitled to any part of tbe money. It does not appear that be claimed any of it, or took any part in tbe proceedings in tbe court below. He filed no exceptions whatever to tbe auditor’s report. His special exception here is that tbe court bad no right to appoint an auditor, and decree distribution-, “ when there was no fund in court.” If this exception bad been made in tbe court below, tbe necessary entries, showing that tbe money was in court, could have been made ; or if tbe money was not in court, tbe distribution would have been suspended until,-it was brought there! To make this exception after final decree, is to make it out of time. To make it here, without presenting it to tbe court below, is to make it in the wrong place. As tbe record stands, we are bound to presume that tbe money was within the grasp of tbe court. Tbe ease of William’s Appeal has no application. In that case, it appeared affirmatively that tbe money had in part been distributed by the sheriff at his own peril, and was, therefore, not in the power of tbe court. 9 Barr, 27 9.

There is no error in tbe decree of distribution.

Decree affirmed.  