Muhlenberg v. Brock , 25 Pa. 517 ( 1855 )

The opinion off the Court-was delivered by

Woodward, J. —

John Brock, for the use of-Samuel Heilner and John Brock, entered judgment in the Common Pleas of Schuylkill county against Marcus- G. Heilner and Percival Heilner, issued a ft. fa. thereon* and-sold the personal estate of the defendants for $10,180. This money being brought into Court, the above-named plaintiffs in1 error appeared and claimed it' as landlords of the defendants'in the execution on account of a year’s rent due to them under’ certain coal leases, and suggested to the Court, says the record* “ that the facts whether the said rent or any.part thereof is due, and-also whether, if due, the said claimants are.entitled to-receive the same out of the- proceeds of the sale, are'disputed.” Issues were, thereupon awarded to' try these'facts j but-they were never formed.

When an-issue is directed, the Court should indicate-who are to be the parties-. Plaintiff and defendant, and- the counsel of the party asking for it, should then draw up a declaration in', assumpsit as upon- a wager, and a special plea-in' bar and a joinder- in that issue, and-file-it. The form books'contain-precedents; and-a very good-one, as- settled in the District Court of' Philadelphia, under the interpleader Act, and which admits of ready adaptation to other cases, may be found' in 1 Wharton’s-- Troubat & Haly’s Pennsylvania Practice, edition of 1853, p. 727. The record then-shows who the'parties litigant- are, and the precise facts which have been established.

No such course was pursued here. There were no parties and1 no pleadings, but the suggestion made by the landlords- seems to have been' considered substantially an issue between them and the plaintiffs in the execution. Two questions were suggested — one of pure fact, whether there was any rent due; and the other a mixed question of law and fact, whether, if there were rent due, the claimants were entitled to recover it out-of the proceeds of the sale; — and the Court proceeded to try these questions upon the evidence. But, after admitting the evidence, they declined to charge the jury upon the effect of it, as requested in several points put by the counsel of the landlords, and directed a verdict for the plaintiffs in the execution. The whole case was thus withdrawn from the jury, and no fact whatever was established.

This was a virtual abandonment of the issue, such as it was, and a distribution of the proceeds as if none had been asked for; and now, upon a writ of error, we are expected to review the law of the case.

There is nothing here for review. The law arises upon the facts, and they are not found. Neither in form nor in substance have they been passed on. The whole purpose of an issue was that the jury might find the facts; but this the Court prevented by refusing to submit them. It is obvious, then, that the record is in no condition to receive our judgment of the law. The loose, indeterminate, and unskilful character of these proceedings brings to mind forcibly the condemnatory observations of Chief Justice Gibson in Shultz’s Appeal, 1 Barr 254, where it was said, we are “ confounded by the rude and undigested mass in which the proceedings are sent to us.”

The judgments and all proceedings subsequent to the demand of an issue are set aside and' reversed, and the record is remanded to be proceeded in according to law.

Tyson & Sallaba v. Same Defenbants.

Let the same judgment be entered in this as in the former case, and for the same reasons.

Judgment reversed and procedendo awarded.