Loeffler v. Schmertz , 152 Pa. 615 ( 1893 )

Opinion by

Mr. Chief Justice Paxson,

The first specification alleges that the court below erred in refusing an issue as prayed for in appellant’s petition. The •appellant relies on the act of April 20, 1846, P. L. 411. That portion of it, which affects this case, is as follows: “ Provided, that before an issue shall be directed upon the distribution of money arising from sales under execution, or orphans’ court sales, the applicants for such issue shall make affidavit that there are material facts of 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 suit now lies.”

Under this act it is plain that it is the duty of the court below to determine whether the facts in dispute are material, and are sufficiently set forth, and if they are not so, to refuse the issue.

If the facts on which this issue were demanded are correctly set forth in the affidavits they would certainly indicate fraud ■on the part of Schmertz. But conceding that he is a rogue and that his purchases of goods were made with intent to cheat his creditors, it is necessary to connect the plaintiff, Loeffler, with the fraud, before he can be affected. This has not been made to appear. It is not denied that he was a creditor of ■Schmertz, and the only ground on which the judgment held by him was seriously attacked is that it was given for a larger amount than was necessary to cover the liabilities of Loeffler for Schmertz. The learned judge below finds that at the time the judgment of $100,000 was given, June 13, 1891, the claims and liabilities of said Loeffler for said Schmertz amounted to $101,616.66. It is not needed that we should go into the items of which this sum was composed, as the learned judge below has given sufficient reasons for' his refusal to award an issue.

Judgment affirmed.