Appeal of Benson, Phelps & Way

The opinion of the court was delivered, by Thompson, J. — We are not informed of the grounds upon which the issue was refused' in the court below; and as the demand for it was in time, and the nature of the disputed facts explicitly enough set forth, and material, if true, we think the court erred in refusing it. The Act of Assembly is quite imperative, as many decisions show, that the court, under such a statement of the case, must grant an issue: Sec. 2 of the Act of 20th April 1846. It is true, as contended for by the counsel for the defendant in error, that if the record had shown that the issue, if granted, must necessarily prove unavailing, the court would not be bound to grant it. The law does not require vain things. If, for instance, a judgment obtained on adversary process after trial, were attempted to be impeached for fraud, I apprehend .the court would hardly order an issue to test its validity. But here the judgment was by confession; and although the liquidation seems to have been made by highly respectable counsel on both sides, yet, being confessed, it is subject to be assailed on the grounds set forth, with what success, is a thing with which we have no con [161] cern. We think, therefore, the court should have granted the issue. The remaining question regards the supplemental report of the auditor; and we think the court did right in striking it off. The auditor was appointed to “ distribute the money in court made on the writ” of Weaver & Graham v. Marvin. He was in error, therefore, in going beyond his powers in distributing other moneys in court not so derived. The Marcy judgment, on which the $580 received from Mrs. Root was paid, was not involved in the distribution in any way, and the money paid on it was not in contest under the order of distribution. Another good reason for striking it off was, that the auditor having reported, had no right to assume jurisdiction of the subject again without a re-commitment of it to him. And now, to wit, October 27th 1864, the order of the court refusing the issue prayed for by the appellants is reversed, and the record is remitted to the court below, to be proceeded in, in accordance with this opinion.