Kramer v. Moss

90 Pa. Super. 550 | Pa. Super. Ct. | 1927

TREXLER, KELLER and GAWTHROP, JJ., dissent.

Argued April 19, 1927. The plaintiff obtained a judgment against the defendant by confession on a judgment promissory note for $4,000. Some time after the maturity of the obligation a writ of fieri facias was issued whereupon the defendant presented a petition to open the judgment and for a stay of execution for the reason that after the entry of the judgment the plaintiff had collected and has in his possession "certain rent money belonging to petitioner aggregating the sum of $2,075.96" to which the petitioner was entitled immediately on collection, which money the plaintiff refused either to turn over to the petitioner or to credit on the judgment. It is further set forth that the defendant paid to the sheriff the sum of $1,926.04 to apply on the execution which sum together with the amount received by the plaintiff for rent equalled the whole amount due on the writ of fieri facias. To this petition the plaintiff filed an answer in the nature of a demurrer in which he denied the right of the defendant to set off against the judgment and execution an unliquidated claim. The case was heard on the petition and answer and the learned trial court, while denying the right of the defendant to have the judgment opened for matters arising after the entry of the judgment and not any denial of its validity, regarded the application as meritorious from an equitable point of view and directed an issue to be formed for trial by a jury to determine how much, if anything, is due on the judgment; the lien of the levy to remain and further proceedings thereon be stayed pending the determination of the issue. The objection to this proceeding is that it is an attempt to set off an open account against a valid judgment. It is not alleged in the petition nor asserted in the argument of the learned counsel for the defendant that there had been any settlement or adjustment of the defendant's claim described as rent, nor is it alleged that by any agreement or admission the plaintiff had admitted his possession of a sum of money to which the defendant is entitled. The attempt is to set off against the judgment an unliquidated claim which the defendant says he holds against the plaintiff. The cases are numerous which authorize the practice of staying a writ of fieri facias to enable the defendant to show payments on the judgment after the entry thereof. Some of these cases are referred to and the proper practice disclosed in the opinion of our brother TREXLER in Brader v. Alinikoff, 85 Pa. Super. 285. They are cases however wherein payment was alleged, but here we have an application to set off a counterclaim against a judgment. It was said in Thorp v. Wegefarth, 56 Pa. 82, that to a judgment there can be no set off of a debt not in judgment; one judgment may be set off against another through the equitable powers of the court, but to a judgment ripe for execution there can be but one answer, that is payment pure and simple, and this applies as well to a judgment entered by confession as to one entered by adverse proceeding. This announcement of the law was reaffirmed in McKee v. Verner, 239 Pa. 69, as also in Beaty v. Bordwell, 91 Pa. 438; Cooke v. Edwards, 15 Pa. Super. 412. The statement by the petitioner that the plaintiff has a certain amount of money in his possession belonging to the former does not amount to a liquidation of the account. It is a mere expression of belief. No facts or circumstances are alleged showing the source from which the money came into the plaintiff's possession nor by what right the defendant claims to own it. The plaintiff's debt is of a higher quality. It rests in a judgment. Until the defendant's right is fixed by a judgment or perhaps by an account agreed upon, his remedy is to proceed by action to recover the amount of his claim. The judgment thus obtained might be set off against the plaintiff's judgment of course, but as the case now stands, we see no basis on which the defendant's counterclaim could be asserted against the judgment. It may be unreasonable for the plaintiff to refuse to credit money in his hands belonging to the defendant to the judgment, but the law does not permit the trial of an issue to determine how much the plaintiff owes the defendant on an open account for the purpose of giving the latter equitable relief as against the plaintiff's execution. For the reasons stated, the assignments of error are sustained and the order reversed.

TREXLER, KELLER and GAWTHROP, JJ., dissent.