Delaware R. v. Amity Coal Co. , 124 Pa. 635 ( 1889 )

Opinion,

Mb. Justice Sterbett:

One of the questions, involved in several of the specifications, is whether the learned master and court below did not err in finding that the claim of appellants was not filed in time, and therefore invalid as a lien on the property, from the sale of which the fund for distribution was raised.

Precisely the same question, depending on substantially the same evidence, has been considered in Harman & Hassert’s Appeal from same decree, and decided adversely to appellants’ contention. For reasons briefly stated in the opinion just filed in that case, at No. 179 of this term, we are still of opinion that there is no error in any of the findings of fact relating to the completion of the building in question, and the consequent invalidity of the lien under which appellants claim the right to participate in the fund for distribution. It is unnecessary to repeat what is there said. The specifications of error relating to that subject are not sustained.

The only remaining specification is the refusal of the court to grant the application for an issue to be framed under the 87th section of the act of 1886. That section, qualified by the proviso of § 2, act of April 20, 1846, P. L. 411, is as follows: “ If any fact connected with such distribution shall be in dispute, the court shall, at the request in writing of any person interested, direct an issue to try the same,.....provided that before an issue shall be directed.....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,” etc.

In accordance with the requirements of the act, it is well settled in practice, that the applicant must set out the specific facts in dispute, on which he bases his claim to an issue: Dickerson’s Appeal, 7 Pa. 258. A fact is properly said to be in dispute, when it is alleged by one party and denied by the other, and by both with some show of reason. A mere allegation, without evidence, or against the evidence, cannot create a dispute within the meaning of the law: Knight’s Appeal, 19 Pa. 498. In a proper case, an issue is of right; but, it must always appear that the disputed fact is material and relevant: Souder’s Appeal, 57 Pa. 498; Benson’s Appeal, 48 Pa. 160.

The questions, composing the issue demanded in this case, are five in number. The first is, “ 1. Whether the portion of the breaker, finished in December, 1884, was a constituent part of the structure ? ” It is claimed that an affirmation of this question would have settled a material fact in appellant’s favor, viz.: that their claim, filed June 9, 1885, was in time. That, however, is a non sequitur. Assuming, for the sake of argument merely, that an affirmative finding of that fact would determine anything at all as to when the building was completed, it could be nothing more than the fact that it was finished some time in December, 1884, but whether more or less than six months before appellants’ claim was filed would still be uncertain. But, aside from that, how could the finding that, “the portion of the breaker, finished in December, 1884, was a constituent part of the structure,” determine when the original structure was finished? The contention, on the other side, was that it was finished about September 20, 1884; that it was afterwards found by experience that some slight alterations and additions would be desirable, and they were accordingly made early in the following December. This is what is meant by “ the portion of the breaker finished in December, 1884.” Of course, the alterations and additions thus made would at once become “ a constituent part of the structure,” just as would an out-kitchen added to an already completed dwelling house. The fact that the additions and alterations made after the breaker, as originally designed, had been completed and put in operation, became a constituent part of the structure, was not even disputed; but if it had been, the settlement of that disputed fact could have nothing whatever to do in determining when the breaker, as originally designed and constructed, was finished. If the purpose of the first question was to determine that the claim was filed in time, it was not so worded as to accomplish that object. As presented, it was irrelevant and immaterial. The controlling question, whether the claim was filed in time or not, having been omitted from the issue, the remaining questions of fact were immaterial. There was therefore no error in refusing that issue as presented, and the case was rightly disposed of on the report of the auditor.

Decree affirmed, and appeal dismissed at the costs of appellants.