Berger & Wirth v. H. W. Juergen & Co. ( 1898 )

Opinion by

Rice, P. J.,

It was held that an award or refusal of an issue under the sheriff’s interpleader act of 1848 was not a matter of right but of sound discretion under all the circumstances of the case: Bain v. Funk, 61 Pa. 185; Zacharias v. Totten, 90 Pa. 286; White v. Rech, 171 Pa. 82. Whether or not the Act of May 26, 1897, P. L. 95, has changed the law in this regard and gives the claimant a right of appeal-(using that term in its strict sense) from the refusal of an issue is a question left open for future consideration. It is not necessary to express a decided opinion upon it in the present ease; for it is clear that the legislature did not intend to take away the discretionary power of the court to inquire into the claimant’s title and to refuse the issue where none is required under the circumstances of the case. This case furnishes a fair illustration of the consequences that might ensue if it were to be held that a claimant is entitled to an issue as a matter of right, without regard to the circumstances of the case disclosed on the hearing of the application. On the return of the rule to show cause he filed an answer in which he set forth that “ the goods appearing in the schedule hereto annexed are his under bill of sale, and this, affiant can verify on the trial of said case.” When the bill of sale was delivered, whether before or after the issuing of the execution, and whether, possession was ever given, are material facts upon which the affidavit is silent. Therefore it cannot be said that the claimant clearly averred a good prima facie title as against the execution creditor, and in the absence of such averment it surely was not error, much less an abuse of discretion on the part of the court, to refuse to tie up the execution and put the parties to the expense of a trial of an issue. This is all that need be said in disposing of the present case. It will be time enough to discuss other questions of practice under the act of 1897, when they arise.

Finding no error in the record the order is affirmed and the appeal dismissed at the costs of the appellant.