Kightlinger's Appeal

101 Pa. 540 | Pa. | 1882

Mr. Justice Green

delivered the opinion of the court, December 30th 1882.

On the back of the alias fi. fa. for the use of Kightlinger v. Stitzcr and Davis is written the following:

“ By virtue of this writ I have levied upon all the following property : Three horses, fourteen cows, ten head of young cattle, forty sheep, seven lambs, four hogs, two wagons, one top buggy, one other buggy, one sleigh, one pair bobs, two sets double harness, two single harness, lot of hay, oats and corn, lot of farming utensils, lot of household goods, and all other personal property of the defendants.

“ O. H. P. Dickson, Deputy.

“ George P. Ryan, Sheriff.”

The writ was issued, on March 26th 1877, and on 6th April, 1877, on the filing of an affidavit of one of the defendants, the court below granted a “ rule to show cause why the judgment should not be opened and defendants let into a defence. Lien of levy to remain.” The sheriff then made an additional endorsement on the writ in these words; “April 1877. Returned stayed by order of court. So answers, George P. Ryan, Sheriff.” The writ with both the foregoing endorsements upon it was returned into the Prothonotary’s office where it remained on file. It is a part of the record in this case and is so returned to this court. The auditor found as a fact that the levy was made by the deputy sheriff, and states the testimony and the reasons upon which that finding was based. Notwithstanding this the learned court below decided that there was no legitimate evidence that any levy was made on the writ, and characterized the first of the foregoing endorsements as “ a few lines of writing on the inside of the paper, which purport to be a levy or an attempt at levy, but the writing is without date or other special mark of identification, and may have been put there after the order for the stay and after the return.” We are not able to assent to this view of the subject. There certainly was legitimate evidence of a levy both by the return of the sheriff and by evidence aliunde. We know of no reason why the first return signed by the deputy and by the sheriff, in which it is distinctly asserted that, “by virtue of this writ I have levied upon all the following property,” is to be rejected and disregarded as “ a few lines of writing,” placed there without authority. The only reasons given for this treatment of it, are that the writing is without date or mark of identification, and may have been put there after the order was granted staying the writ. But these reasons are not satisfactory. It is true the writing is not dated but as the writ was issued on March 26th 1877, and the order granting a rule to show cause was made on April 6th 1877, thirteen days later, and specially directed that the lien of the levy should remain, it is sufficiently certain that the levy was made between March 26th and April 6th. The court, by its order, recognized the fact that a levy had been made, and only stayed the proceedings and allowed the rule to show cause, upon condition that the lien of the levy should remain. How then can the same court now say in the face of its own order that there was no levy? And how can it be presumed that the writing was put upon the writ after the order was granted, when the order itself assumes the existence of the fact of levy which is specially set forth and reported in the writing ? As to identification it is enough to say that the writing has appended to it the undisputed official signatures of both the sheriff and his deputy. There is not a scrap of testimony to show that the endorsement of levy was either a spurious writing, or that it was placed upon the writ after the order for the stay. There is of course no right to make a presumption of either of these things as that could only be done by reversing the maxim, omnia prmsumuntur esse rite aeta.

The only remaining question is whether the appellant lost his lien by reason of the delay in disposing of the rule to show cause. But why should that delay, of its own force alone, deprive him of his lien? He did not cause the delay. It did not occur by means of his procurement, lie gave no directions not to proceed, as was the fact in most of the cases cited. On the contrary, he was vigilant. He issued his writ, caused his levy to be made promptly, and was then arrested in his proceedings by the interposition of the defendant, and the positive order of the court. This order was made against the appellant and against his interests. What could he do thereafter? Certainly he could not issue another writ until the rule to show cause was disposed of. It has not been shown that he was in any manner, or in the least degree, responsible for the delay in disposing of the rule. Moreover his lien by virtue of his levy was specially protected by an order of the court, and hence was not to be lost by reason of delay in disposing of the rule. It seems that although the rule to show cause was granted on April 6th 1877, it was continued on the argument list at various times until February 4th 1878 when the learned judge of the court below, having been of counsel in the case, but having come upon the bench pending the proceedings, continued it for a special list. The auditor reports that the record shows nothing more until January 17th 1881, when the rule was discharged. It was decided in Batdorff v. Foeht, 8 Wr. 195, and Bain v. Lyle, 18 P. F. S. 60, that a fi. fa., having a lien on goods, does not lose its priority over subsequent executions by reason of a judicial order staying proceedings until a rule, taken by the defendant, should be disposed of, although there was no stipulation in the order that the lien should remain. A fortiori will the lien be preserved where it has been specially so directed in the order. In the case of Bain v. Lyle, supra, the present Chief Justice, on p. 65 says: “The execution creditor can not lose his lien without some neglect or default on his part, without at least having a full remedy against the sheriff on his official bondand he then quotes from Judge Woodward’s opinion in Batdorff v. Focht thus: “It is a general principle that interlocutory orders shall not impair vested liens. It is usual to accompany such orders with a stipulation that the lien of the writ, which is the subject of the order, shall remain until the motion has been disposed of on final hearing; and this is a prudent and proper practice. But when, as in this case, it is omitted, the lien must nevertheless be regarded as preserved for it is one of the vested legal rights of the plaintiff, and can no more be sacrificed by an edict of the court without a hearing than any of his other civil rights whether of liberty or property.” If the lien is preserved during the pendency of the proceedings on the rule to open the judgment, how shall it be said to be lost, while they are pending, merely because of the lapse of time required to dispose of the rule? If that were so the order preserving the lien would be nugatory. It is not a question of abandonment by the sheriff, but of the mere effect of the lapse of time, that we are dealing with. The Auditor only allowed the appellant to participate in the distribution to the extent of the value of the property covered by his original levy and still remaining in the possession of the defendants. As to these articles the subsequent execution creditors had notice .by the record of the proceedings under the appellant’s judgment and execution. In Perit v. Wallis, 2 Y. 521, this court held that, when goods levied on were not removed by the sheriff during two years, yet the lien of the plaintiff in the execution was not lost. In that case there were no proceedings to open the judgment and no order preserving the lien, and the same is true of the case of Lewis v. Smith, 2 S. & R. 112, where a still greater delay was held not to divest the lien. Without determining whether such delays would now be allowed in ordinary cases, it is enough to say in the present case that the appellant’s lien was protected by a positive order of the court, which by its very terms was operative until the proceeding, in which it was made, was determined. That protection was effective at the time of the issue of the subsequent writs in 1880, and hence it follows that the Auditor was right in distributing to the appellant the proceeds of the property which yet remained and was subject to the lien of his writ. The decree of the court below must therefore be reversed and the distribution made by the auditor restored.

Decree reversed and it is ordered that the fund in court be distributed in accordance with the report of the Auditor, the costs of this appeal to be paid by the appellees.