Second N. Bank v. Penna. etc. Coal Co.

Per Curiam: The first assignment alleges error in refusing the issues requested by the appellant John S. Jenkins, and the second alleges error in refusing the issues requested by appellant E. A. Coray. The third assignment is too general to require discussion. The demand for issues, as above stated, was not made until the case had been before the auditor some two years, a large amount of testimony taken, and some days after the parties had been notified by the auditor that his report was ready for filing. After all this delay and the necessary expense involved, it would require a very strong case to justify us in reversing for the refusal to award an issue. Moreover, we do not think the appellants were entitled to it. The second section of the act of April 20, 1846, P. L. 411, providing for the caso where lands are purchased by a lien creditor, declares : “If the right of said purchaser or purchasers, to the money mentioned in said return, shall be questioned or disputed by any person interested,'the court shall thereupon appoint an auditor, who.....shall make a report distributing the proceeds of such sale, with the facts and reasons upon which such distribution is made, to be approved by the court; or, to direct an issue to determine the validity of said lien; and all further proceedings shall be stayed until the said issue shall be decided,” etc. It thus appears that the remedy or proceeding in such case is two-fold; the person or persons interested may have an auditor, or an issue; the law does not give both. The appellants applied to the court below for the appointment of an auditor, and an auditor was accordingly appointed. They selected their own mode of proceeding; they elected between the two remedies provided by the act of assembly, and having exhausted [632] the one, have now no right to repudiate it, and proceed under the other. Aside from this, there were no disputed facts which would have justified an issue. The decree is affirmed and the appeal dismissed, at the costs of the respective appellants.