Trayhern v. Hamill

Irving, J., delivered the opinion of the Court. The appellee having filed his petition, as an insolvent debtor, in the Court of Common Pleas for a discharge under the insolvent laws of the State, the appellant being a creditor to a large extent of the petitioner, filed interrogatories to which the petitioner made answer. The appellant filed exceptions to the answer, propounded new interrogatories, made new charges and prayed issues to he tried by a jury. The appellee pleaded not guilty to the charges alleged in the petition.

Appellant then filed a suggestion for removal because he could not have a fair trial in that Court, which suggestion was verified by affi ⁹¹ davit. The Court overruled the motion or suggestion for removal, and the correctness of the Court’s action in that regard, forms the subject of this appeal. The Act of 1874, chapter 364, which submitted a constitutional amendment, which was afterwards adopted, and which must control this question, uses this language, “ in all suits or actions at law, issues from the Orphans’ Court or from any Court sitting in equity,” * * * “on suggestion in writing under oath of either of the parties to said proceedings, that such party cannot have a fair and impartial trial in the Court in which the same may be pending, the said Court shall order and direct the record, etc., to be transmitted to some other Court.” Our inquiry is, does this language embrace issues framed in an insolvent proceeding. . In order to fall within this provision of the Constitution, it must be covered by tbe terms, “ suit or action at law,” for the issues provided for are expressly confined to “ issues from the Orphans’ Court, or from any Court sitting in equity.” That the words “suit or action at law ” will not embrace an insolvent proceeding or issues in it, seems to be expressly decided by this Court in Michael vs. Schroeder, 4 H. & J., 227 .