Cake v. Cake

106 Pa. 472 | Pa. | 1884

Chief Justice Mercur

delivered the opinion of the court,

This was a feigned issue directed by the court, against the objection of the plaintiff in error, to ascertain substantially, whether he was the absolute owner of four several judgments against the father of the defendants, or whether he held, them as collateral security for the payment of money advanced by him, when he procured an assignment of the judgments. On the trial of this issue the jury found the facts to be as ayerred by the defendants in error, that they were held as security only for the sum paid to the assignor.

Before the issue was ordered, the plaintiff in error had caused a scire facias to issue on each of said judgments. The cases were put at issue, and one of them came on for trial. The character of the defence being stated, and it appearing to be applicable to all the judgments, a juror was withdrawn, and the feigned issue was directed and framed. The validity of the judgments for their whole amount, in the hands of the former owner, is not now questioned. The contention is whether the plaintiff in error procured the assignment under such an agreement with the administrator of the defendant in the judgments, that lie holds thorn only as security for the sum he advanced for the transfer thereof to him.

The first question which arises is whether a writ of error to the judgment in this feigned issue is not premature? No judgment has been rendered on either of those soi. fas. No order has been made whereby the right of the plaintiff to collect the whole amount of the judgments on which they issued, is denied. The issue directed by the court to inform its conscience, has been determined adversely to the plaintiff; yet no entry has been made on the record of those judgments consequent on the finding in the issue. The sum apparently due thereon to the plaintiff, remains unreduced of record. No order has been made forbidding the collection of any part thereof. If the plaintiff holds them merely as collateral security for the payment of @5,000, and interest, he is nevertheless entitled to retain them for their full amount until he is fully paid, and to take the steps necessary to retain the lien thereof. Before some definite action is taken, denying the right of the plaintiff to revive the judgments, or forbidding the collection of a part thereof, the ease is not ripe for review by this court. Until some such action there is neither final judgment nor definitive decree affecting the rights of the plaintiff as owner of the judgments to their full amounts.

The authorities are not in entire harmony as to whether a writ of error will lie in feigned issues, and if it will lie, at what time ?

A feigned issue is to inform the conscience of the court as to disputed facts. It was held in Neff et al. v. Barr, 14 S. & R., 166, that it may be so moulded as the discretion of the court dictates, and the mode in which it is done is not the subject of a writ of error; yet if error be committed in the trial of the issue, the party aggrieved has a remedy by writ of error.

In Baker v. Williamson, 2 Barr, 116, it was held that when a Court of Common Pleas, in deciding on a ease under the chancery powers vested in it by Act of Assembly, directs an issue, error will not lie to the proceedings therein in a court of law. It is there held where the case is purely a proceeding in chancery, and the chancellor directs an issue to inform his conscience, error will not lie. In that case the writ of error was quashed.

Again in Baker v. Williamson, 4 Id., 456, the contention was in regard to the effect of a verdict in an issue directed by the Common Pleas in an equitable proceeding. In answer to the argument that the verdict was conclusive, it was-declared that the effect and function of a verdict in a court of equity is entirely different from a verdict in a case according to common law. A chancellor may disregard the verdict of the jury and decide the case according to his own convictions.

It was held in Commonwealth v. The Judges of the Court of Common Pleas, 4 Id., 301, that a writ of error will not lie to proceedings on a feigned issue directed by the Orphans’ Court, to the Court of Common Pleas.

The right to a writ of error in such cases was afterwards given by the Act of 10th April, 1848. It was however held in Hallowell’s Appeal, 8 Harris, 215, that the right of appeal from the final decree was not taken away by that Act, and on appeal from such decree to this court, that we had power to examine the whole proceeding.

In Ingraham v. Caricabura, 5 Barr, 177, it was held that a writ of error does not lie to a judgment on a feigned issue directed and tried by the Common Pleas to determine the right of an assignee for creditors, to be allowed for advances and expenses on account of the estate, after he had been removed by order of court.

It was said in Christophers v. Selden, 4 Casey, 165, that the practice of suing out writs of error upon feigned issues, was not to be encouraged.

In Brown v. Parkinson, 6 P. F. S., 336, it was held that a writ of error will lie in a judgment in a feigned issue to try whether a judgment was confessed to hinder delay or defraud creditors.

It was held in Reed’s Appeal, 21 Id., 378, although the Act of Assembly expressly gives a writ of error in an issue to try a question of fact in the distribution of the proceeds of a sheriff’s sale, yet the writ does not lie until after final decree. So it was held in Green v. Mills, 7 Out., 22, that the writ of error authorized by Act of 10th April, 1848, in a feigned issue directed by the Orphans’ Court, does not lie until final decree has been entered in that court. The reason is, that the determination of fact found in the Common Pleas is not necessarily binding on the Orphans’ Court; but that an appeal from the decree of distribution, and a writ of error to the judgment in the feigned issue, may be brought at the same time.

Thus it is shown the weight of authority is that whenever the judgment in a feigned issue is for the purpose of influencing the action of the same court, or another court, in making an order or decree affecting another judgment or claim, the suing out of a writ of error in the feigned issue should be postponed until after final order or decree has been made. After such final action, the party aggrieved may bring up the case in proper form for review, and then we may examine into the correctness of the manner in which the final judgment or decree was arrived at.

We therefore hold that this writ of error issued prematurely.

Writ quashed.