Delaware R. v. Amity Coal Co.

Opinion,

Mr. Justice Stepiiett :

The fund, in the distribution of which appellants claimed the right to participate as lien creditors, was raised by sheriff’s sale of the Amity Coal Company’s property on a levari facias in favor of the Delaware, Lackawanna and Western Railroad Company. They claimed under a mechanics’ hen filed June 15,1885, against a building known as a “ coal breaker,” erected on the premises by the company defendant in the execution.

The validity of the lien, and consequent right of appellants to participate in the fund, depended on whether théir claim was filed within six months from the completion of the building. That, of course, was a question of fact to be determined by the evidence. The testimony was somewhat conflicting, but, upon a careful consideration of all the evidence, bearing on the subject, the learned auditor reached the conclusion that the claim was not filed in time, and he so found as a fact. That and other subordinate findings of fact were approved by the court, and, of course, the result was that appellants were not permitted to participate in the distribution.

The subject of complaint, in the first and controlling specification, is the finding by the auditor, and approval thereof by the court: “ That the claim of Harman & Hassert was filed too late, the breaker having been completed more than six months before it was filed.”

The six remaining specifications are each predicated of error in that finding of fact. Unless it is manifestly erroneous there is nothing in either of the assignments of error that will justify a reversal of the decree.

It has been most thoroughly settled by a long line of cases, which it is unnecessary to cite, that an auditor’s findings of fact, approved by the court below, will not be disturbed on appeal to this court, except for manifest error. His report, upon the facts of the case submitted to him, is entitled to the same weight as the verdict of a jury, and will not be set aside except for reasons which would constrain a trial judge, in an action at law, to set aside a verdict and order a new trial.

While portions of the testimony relied on by appellants are sufficient to create some doubt as to the correctness of the finding complained of, a review of all the evidence, returned with the record, has failed to satisfy us that the finding on that controlling subject should have been in favor of the appellants. On the contrary it appears to be in accordance with the weight of the evidence.

There is nothing in the terms of appellants’ contract with the Amity Coal Company, Limited, for furnishing mine cars, to be delivered from time to time as they might be needed by the company in the prosecution of its mining operations, etc., that could, by any possibility, have the effect of extending the time for filing appellants’ claim beyond six months from tbe completion of tbe breaker. Nor did tbe fact that the coal company, after the completion of the breaker, found it necessary to make some alterations in and additions to tbe building, have any such effect.

There appears to be nothing in the record that requires a reversal of tbe decree.

Decree affirmed, and appeal dismissed at the costs of tbe appellants.