46 Pa. 321 | Pa. | 1863
We think the learned judge of the Common Pleas decided rightly, when he held the application for an issue in this case too late. It was made just as the court were about to determine the case on the proofs taken before a commissioner, to whose appointment the appellant had assented, and before whom he appeared when the testimony was taken. The party had a right to an issue to try disputed facts, but he was bound to exercise his right reasonably and with vigilance. The taking of testimony before a commissioner was a step in a hearing before the court also. I will not say that after that, the party might not be entitled to an issue. But if anything appeared in the course of the testimony which made an issue desirable, he ought at once to have withdrawn, giving the opposite party notice of his intention to apply, and make his application to the court at the earliest possible moment thereafter. If, on the contrary, a party be in court by appearance, or there is a service on him, and he makes no application for an issue until after the testimony has been taken, and the court is about to determine the case, it is too late then to demand an issue. Expense of testimony having been incurred in a regular course of proceeding, to postpone the determination then, would be to incur new expense, and to produce injurious delays oftentimes. The appellant here was too late in his application, in view of the facts of the case, and the decree of the Common Pleas is
Affirmed at the costs of the appellant.