Atherholt v. Atherholt

Opinion by

Beaver, J.,

The act of assembly relating to executions, approved June 16, 1836, P. L. 755, in its 87th section provides: “If any fact connected with such distribution (arising from sale upon execution) shall be in dispute, the court shall, at the request in writing of any person interested, 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 now lie.” A proviso to the second section of the Act of April 20, 1846, P. L. 411, directs “ that, before an issue shall be directed upon the distribution of money arising from sales under execution or orphans’ court sales, the applicant for such issue shall make affidavit that there are material facts in dispute therein and shall set forth the nature and character thereof, upon which affidavit the court shall determine whether such issue shall be granted, subject to a writ of error or appeal by such applicant, if the issue be refused, in like manner as in other cases in which such writ now lies.”

The appellant, having issued its attachment against Thomas C. Atherholt & Company, under the provisions of the Act of May 24, 1887, P. L. 197 prior to the sheriff's sale under and by virtue of which the fund for distribution in this case was raised, was a party interested within the meaning of the act of 1836, supra: Schwartz’s Appeal, 21 W. N. C. 246. Its request or application was in writing which, was supported by an affidavit as alleged by the appellant and apparently admitted by the appellee, although the petition and affidavit upon which the rule to show cause was granted nowhere appears in the paper-book of the appellant.

The only question, therefore, is as to the sufficiency of the affidavit. No answer was filed by the appellee and the rule was granted. It is alleged by the appellant and admitted by the appellee that said rule was returnable the third Monday of September, 1897, and was discharged July 30, 1897, during vacation, without notice to the appellant and without reasons assigned therefor.

The facts of this case are similar in many respects to those in Schwartz’s Appeal, 21 W. N. C. 246, in which Mr. Justice Green says: “We do not know upon what ground the application for an issue was refused in this case, as no opinion was filed by the court below and no paper-book has been furnished us by the appellees. As it seems to us, the facts set forth in the written application of the appellants for issues in the several judgments mentioned are quite sufficient, not merely to justify but to require the learned court below to grant the issues prayed for. The language of the act of 1836 upon this subject is peremptory.” The language of the affidavit in this case, so far as we can ascertain it from the paper-books, is similar to the one filed in the case above quoted. Moore v. Dunn, 147 Pa. 359, it will be found upon examination does not in any essential particular relax the rule laid down in Schwartz’s Appeal, supra, so far as the present case is concerned, inasmuch as the affidavit required by the act of 1846, supra, was made and no answer was filed by the appellee. Even upon the very unsatisfactory manner in which this question is presented for our consideration by the appellant’s paper-book, we are of opinion that the issue prayed for should have been granted, unless after answer and depositions the appellant had failed to make out such a case as would justify it. “ As a genera] rule, an issue should never be awarded on evidence so slight and insufficient that, in case a verdict should be rendered thereon in favor of the petitioner, the trial judge would be bound to set it aside: ” Hagy et al. v. Poike, 160 Pa. 522; but until the time to determine the insufficiency of the evidence arrives, the petitioner has the undoubted right of being heard. The first, second and third assignments of error are, therefore, sustained.

The fourth and fifth assignments are overruled. • The request for setting aside the sheriff’s sale is practically inconsistent with the application for a feigned issue. In addition, the money raised by the sheriff’s sale is abundantly sufficient to pay the appellant’s claim, if its right to its attachment can be established, and the judgments whose validity it contested were found to be, as it alleged, fraudulent. The appellant was present, by agent or attorney, at the sheriff’s sale, and had the opportunity of bidding the property sold to its value. Upon all grounds, therefore, the court below was justified in discharging the rule to show cause why the sheriff’s sale should not be set aside, although we cannot approve of the summary manner in which it was done before the return day, in vacation and without notice to the appellant. The fourth and fifth assignments are overruled.

The decree of the court below, discharging the rule to show cause why the proceeds arising from the sheriff’s sale upon the judgment of Martha C. Atherholt v. Thomas C. Atherholt should not be paid into court, and a feigned issue awarded to determine the validity of said judgment is reversed, and a procedendo awarded.