12 Pa. 222 | Pa. | 1849
Under the Act of 18Q6 respecting executions, if any fact connected with the distribution of the estate shall be in dispute, the Court shall, at the request in writing of any person interested, direct an issue to try the same. This Act is ruled to be imperative on the Court, and a refusal error, in Bickel v. Rauk, 5 W. 140, Reigart’s Appeal, 7 W. & S. 267, Trumble’s Appeal, 6 W. 138, and in 7 W. 127. But it is said that it is not the duty of the Court in all cases to grant an issue: that t.he Act was not intended to enable a litigious party to demand an issue under all circumstances, and thus take his chance before a jury where there is nothing in the case to call for its intervention. And this is ruled in Dougherty’s Estate, 9 W. & S. 192-3, and in Dickerson and Hoover’s Appeal, 7 Barr, 250. If this be a case of that description that there were no facts to submit, or that the determination of the facts would not alter the result, the refusal to direct one issue worked no injury; and consequently, as has been repeatedly ruled, we would not reverse the proceedings. The controversy in this case is between separate and partnership creditors, as to the distribution of proceeds arising out of the sale of property alleged to be held in partnership. In the distribution of the money two facts are material. Was the judgment of the appellant a judgment against the persons named in their individual or partnership characters, and was the property sold partnership property ? In view of these facts, which are undoubtedly material in the distribution, the appellant filed an affidavit, setting forth that the factory property at New Haven sold by the sheriff as the property of Blocher, Shoemaker & Taylor, the proceeds of which are now the subject of
Proceedings reversed and remitted, with directions to award an issue.