Henderson's Appeal
4 Pennyp. 229
Pa.
1884
Check Treatment

the opinion of the Court was filed by

Gkeen, J.:

We are unable to perceive any,sufficient reason for reversing the action of the court below in this case. That action was the discharge of a rule on the sheriff of Centre county to pay into the court of common pleas of Hunting-don county the money realized by the sale of the personal property of Fleck & Miller under certain, writs of test. ft. fa. issued out of the common pleas of Huntingdon county, and directed to, and executed by, the appellee, who was sheriff of Centre county. The rule to pay the money into court was not granted until June 26, 1883. It was not served upon the appellee until August 16, 1883. But the appellee, in his capacity as sheriff, had paid over to Messrs. Speer & McMurtrie, the attorneys of record for the appellant in the execution upon which the money was made, on April 16,1883, all the money made upon the writ. The *234appellant’s judgment was entered on March 23, 1883, in the common pleas of Centre county, the writ of test. ft. fa. was issued on it on the 24th of March, and was returnable on the 9 th of April. On the 17th of April, the sheriff returned the appellant’s writ along with a number of others, and in his return stated that he had applied the -whole amount realized by the sale to the various writs in his hands, giving the precise amounts paid to each. The sale of the personal property of the defendants commenced on the 4th of April and continued during three days, and the appellant was present at the sale, and had full knowledge of it. Speer & McMurtrie were the only attorneys appearing of record upon all the writs, and the entire proceeds of sale were paid to them for their respective clients. As this payment was not made until after the return day of the writs, and as no rule to pay the money into court was granted until more than two months after the payment, and this rule was not served upon the appellee until four months had elapsed, his defense against the rule is sufficient unless there are other facts in the case which change his position and deprive him of his right to set up his payment in reply to the rule. It is alleged that there are such facts. On the 10th of April, the day after the return day of the writs, the sheriff was ruled to return his writs. With that rule he fully complied on the 17th. He was not required by that rule to pay any money into court. The record shows that on the 18th of April a rule to pay in the money was applied for but was not disposed of. The president judge being absent, and objection being made, the hearing of the application was continued until June 26, when the rule was granted, but it was not issued until August 13, nor served until the 16th. This latter day is the first upon which the appellee can be distinctly and certainly charged with a knowledge of the rule. It will scarcely be contended that he was bound to keep in his possession the money arising from the sale for that length of time. The sheriff has an undoubted right to pay to the plaintiff in the execution or his attorney of record the money made under it, unless notified not to do so by some one having the right to give such notices or rule to pay it into court. It is manifest that the rule in this case came too late. But it is further alleged that both a verbal and a written notice not to pay the money to Speer & McMurtrie; and also to pay it into court, were served upon the appellee before the money was paid. On this subject the learned court below has found as a fact that the verbal notice is not sufficiently *235proved, the evidence in relation to it being contradictory, and the written notice was never served upon the sheriff nor communicated to him in any manner until long after the money was paid over. An examination of the testimony satisfies us that the finding of the court on this subject is correct. As to the verbal notice, the appellant-testified to it, but the appellee denies it, and the evidence is therefore contradictory and not satisfactory. As to the written notice, it is not claimed that it was served upon the appellee, or that he did certainly have any direct knowledge of it. But it is said that service of it was accepted by Mr. Fortney as attorney for the sheriff. Mr. Fortney testifies that a paper was handed to him with a request that he would accept service for the sheriff, that he did so without examining it, being very busy at the time, that he never communicated the matter to the sheriff, or told him anything about the notice ; that he had no direction or authority to accept service of this notice, and' that he had no knowledge of the writs in question or of the sale of the property under them. He also said that when the sheriff desired advice from him, he came to him, and when he was to accépt service or notice of any rules, the sheriff always directed him to do so. It is not claimed that Mr. Fortney was the sheriff’s deputy, and there is no proof of his authority to act for the sheriff, except.that which is contained in his own testimony. As this negatives any authority to bind the sheriff by the acceptance of the notice in question, we do not think it sufficient to charge him with the consequences of a non-observance of its terms. Comment has been made on behalf of the appellant as to the payment to Speer & McMurtrie as attorneys for him on his execution, but we think it without warrant. Those gentlemen performed all the professional service that was rendered in making the money recovered for the appellant. He obtained the confession of judgment in the appellant’s favor, entered the judgment- of record, issued the writ of execution upon it, and took the same to -Centre county, delivered it to the appellee as sheriff of that county to be executed, caused it to be levied upon the goods of the defendants, attended and directed the sale and received the proceeds from the appellee. Immediately after entering the judgment and issuing the execution, they notified the appellant of what they had done in his behalf, and inquired if it was satisfactory. To this notice, which was by letter, the appellant replied, making no objection to their action on his behalf, or to further action by them for him, but on the contrary, re*236questing them to send him a statement of the various writs issued, and thanking them for their information. The appellant says in his testimony that he was present with Mr. Speer at the sale, and was directed by him to assist the sheriff all he could at the sale, conversed with him in regard to the crier, knew that Speer & McMurtrie had issued his writ, and did not notify them to retire from his case. It was not until after the sale was completed and money made that he claims to have given any indication that Speer & McMurtrie were not his attorneys in this matter, and then it was not by a notice to them, but to the appellee. That notice came too late to deprive them of their authority or their right to compensation after the continued acquiescence of the appellant in their action on his behalf. The evidence impresses us with the conviction that these gentlemen acted for the appellant in this matter with frankness, promptness, fidelity, and efficiency, and that his attempt to take from them their commissions and deny their authority is ungracious and ill-timed. As they were the only attorneys of record, the payment by the appellee to them of the proceeds of the appellant’s writ was an authorized payment, and the learned court below was right in discharging the rule which practically required the appellee to pay the money a second time.

Decree affirmed and appeal dismissed at the cost of the appellant.