Green v. Mills

Chief Justice Mercur delivered the opinion of the court, This was a feigned issue sent to the common pleas by the Orphans’ Court. Its purpose was to aid the latter in the distribution of a fund. The Orphans’ Court, however, is not bound by the verdict and judgment in the common pleas. If on an examination of the evidence it is dissatisfied with the result, it may decree as it deems just, regardless of the opinion of the jury : Hallowell’s Appeal, 8 Harris 215. Then the judgment in a feigned issue may or máy not deprive either party of a share in the fund to be distributed by the Orphans’ Court. It is true the Act of 10th of April 1848 gives a writ of error to the judgment in such an issue'in the same manner as where feigned issues are directed by the court of common pleas. When directed by the latter court for the ascertainment of facts to aid in the distribution of a fund produced by a sheriff’s sale, it has been expressly hold that a writ, of error will not lie until after the final decree: Reed’s Appeal, 21 P. F. Smith 378. Such being the rule when the issue and distribution are both in the same court, there is greater reason for so holding when ; they are in different courts. This is no denial of a right to the [23] writ of error, but authorizes it as soon as the injury from the judgment is determined. The statute also gives an appeal from the'definitive decree of distribution. When that is made, the party aggrieved thereby can bring up his appeal therefrom and at the same time bring his writ or error and have the judgment reviewed which contributed to his injury. Until final decree, a writ of error is premature and cannot he sustained. This view of the case malees it unnecessary to consider the various assignments of error, and also the further question whether the issue is so framed as to try disputed facts, or whether it is merely to try the right to the fund, which is a question of law. Writ of error quashed.