Providence Steam & Gas Pipe Co. v. Chase, Bartholow & Co. , 1885 Pa. LEXIS 326 ( 1885 )

Mr. Justice Trukkey

delivered the opinion of the court, March 16th, 18,85.

The Act of June 16th, 1836, relating to the distribution of proceeds of sheriff’s sales, clothes the court with power to hear and determine the same according to law and equity. But if any fact connected with such distribution shall be in dispute, at the request in writing of any person interested, the comí shall direct an issue to try the same, and the judgment upon such issue shall be subject to a writ of error, in like manner as other cases wherein writs of error lie. Upon the writ of error the whole record shall be returned, and it shall be competent for any person aggrieved by the decree of distribution, to take exceptions thereto, if the judgment upon such issue should be affirmed. Any person aggrieved by the decree of the court, in any case of distribution made without the intervention of a jury, may appeal within twenty days thereafter: Sections 87, 88, 89, The. Act of April 20th, 1846, provides that before an issue shall be directed, the applicant therefor shall make affidavit that there are material facts in dispute, slating the nature and character thereof, upon which the court shall determine whether an issue shall be granted, subject to a writ of error or appeal by such applicant, if the issue be refused. A chief object of the supplement was to prevent frivolous applications, and to confer power upon the court to determine whether any material facts were in dispute.

Prior to the enactment of 1846, if an issue was refused, the applicant was entitled to redress, and generally, if not always, such redress was obtained on appeal. The mandate to direct an issue, when facts were in dispute, was peremptory. And if the application was made after the evidence had been given to the court, and the counsel had concluded their arguments, it was in time. Since the proviso in the Act of 1846, the right to an issue remains as before, but the court shall determine whether the applicant has set forth any material facts which are in dispute. The remedy for an erroneous refusal of an issue, though expressly given, is the same as existed under the Act of 1836. Of the numerous appeals from the final decrees of the courts of Common Pleas, where applications for issues had been refused, and the refusal assigned for error, in some of which the order of refusal was affirmed, and in others reversed, the following may be cited as tending to show the practice under the statutes where parties are aggrieved by the refusal of an issue: Bichel v. Rank, 5 Watts, 140; Trimble’s Appeal, 6 Id., 133; Robinson and others’ Appeal, 36 Pa. St., 81; Knight’s Appeal, 19 Id., 493; Benson’s Appeal, 48 Id., 160; Souder’s Appeal, 57 Id., 498; Martin’s Appeal, 97 Id., 85.

Where an issue has been directed, whether properly or improperly, the party aggrieved by subsequent action of the court, may take a writ of error. After the trial of an issue erroneously ordered, the order was set aside in this court: Christophers v. Selden, 28 Pa. St., 165. After the trial of an issue, the court set the verdict aside, on the second trial the jury failed to agree, and then the court struck the issue from the record on the ground that the evidence utterly failed to establish the plaintiff’s allegation. That order was reversed for the reason that the plaintiffs, having complied with the pro visions of the statute, was entitled of right to an issue; Dormer v. Brown, 72 Pa. St., 404.

When there is error in the trial of an issue it can only be corrected on writ of error; it cannot be reviewed on an appeal from the decree of distribution made in accordance with the verdict: Garrison’s Appeal, 38 Pa. St., 531. A judgment on an issue to try the right to the money was reversed on a writ of error: but the decree of distribution was said to be reviewable only on appeal: Shertzer’s Exrs. v. Herr. 19 Id., 34.

In Brown’s Appeal, 26 Pa. St., 490, the decree was reversed because it was not supported either by the report of the Auditor, or the special verdict. It was said that a writ of error will lie to a judgment or an issue, but the better practice is to bring up the whole record'by appeal after the decree of distribution. That dictum respecting an appeal, was shown by Sharswood J. in Reed’s Appeal, 71 Id., 378, to be irreconcilable with the statutes which provide that the judgment upon the issue shall be subject to a writ of error; that such writ does not lie until after the final decree; that upon an appeal from the decree there can be no reversal, if it conforms to the facts settled by the verdict and judgment upon the issue; and that it is only in the event of the affirmance of the judgment upon the feigned issue that the decree of distribution is to be reviewed in this court. “We hold the proper practice to be as to the parties to the feigned issue, whenever errors are alleged to have occurred on the trial, after the decree of distribution, by a writ of error to bring up the whole record. If they appeal without accompanying the appeal with such writ, no judgment of reversal of the judgment on the feigned issue can be regularly entered here on the appeal from the final decree, and as a consequence the finding of the jury upon the feigned issue must be regarded as conclusive.”

In the light of the adjudications, the statute is easily understood. A writ of error lies where error is alleged to have occurred on the trial of the issue, or where the court, having directed an issue, afterwards erroneously set it aside. Perhaps the latter could be reviewed on appeal from the final decree. An appeal is the only remedy where error is alleged in the decree of distribution, and this whether the disputed facts were determined on a feigned issue, or otherwise! Where an issue was demanded and erroneously refused, the applicant may have redress on appeal from the decree of distribution..

The decree in this case was made without the intervention of a jury. If the plaintiffs in error were aggrieved by that decree, and allege error in the refusal of their application for an issue, they had remedy by appeal. Indeed that seems to have been, the usual mode of obtaining redress for such refusal. Conceding that a writ of error would lie, if the issue be refused, it should be taken within twenty days from the final decree of distribution. An appeal taken after the expiration of that time will be quashed: Dawson’s Appeal, 15 Pa. St., 480. Unless a writ of error, or an appeal, be taken within the time limited, where the decree is made without the intervention of a jury, the court may order the money to be paid according to the decree. It is not the intendment of the statute to allow a writ of error after the decree has become irreversible by lapse' of time, and the money has been paid accordingly, by order of the court. The Act of 1836 and the supplement of-1846 must be construed as one statute, and the limitation applies wherever there has been a final decree of distribution without an issue having been directed to try facts in dispute. This writ was taken too late.

Writ of error quashed.