Kramer v. Wellendorf, No. 203

No. 203 | Pa. | Oct 28, 1889

Opinion,

Mb. Justice Stebbett.

When this case was here two years ago, we held that the judgment of the justice on which the execution was issued was not void by reason of alleged irregularities or otherwise; that, at most, it was merely voidable, and hence it was sufficient to support the execution on which the property in controversy was sold to the beneficial plaintiff, Mrs. Kramer: Kramer v. Wellendorf, 18 P. L. J. 139. There is nothing in the present record to warrant any other conclusion. The justice had jurisdiction of the cause of action; and, conceding, for argument’s sake merely, the existence of irregularities and errors for which the judgment might and ought to have been reversed, it was nevertheless not void, but merely voidable.

If the appeal which the defendants attempted to take had been perfected, and notice of that fact had been- brought home to the purchaser at constable’s sale before the property was sold, a different state of facts would have been presented, but that was not done. The levy having been rightly made, it was the duty of the constable to proceed with the execution of the writ until it was stayed or superseded, neither of which was done-. It was not the business of the constable, but that of the justice, to determine, in the first instance, whether the alleged appeal was regularly taken and perfected or not. If it was so taken as to operate as a supersedeas, it was his duty to notify. the constable and revoke the execution. If he erroneously or unjustly refused to do so, the defendants’ remedy was by certiorari to the execution. No notice was given to the constable by the justice or any one else. The justice refused to stay the execution, and his action was acquiesced in until the sale was .effected. Under those circumstances, the effect of the sale was to invest the purchaser with a good title to the property: Tarbox v. Hays, 6 W. 400. In that case it was said: “ Even if the proceedings and judgment before the magistrate were irregular and voidable, so that the judgment might have been reversed on error or certiorari, or vacated on motion, it by no means follows that the title to goods previously sold under the execution would be thereby divested.....And there is no difference whether the purchaser- be the plaintiff or a third person. They stand in the same situation where, as with us, sales on execution are made by public vendue.”

In view of what has been said, it is unnecessary to notice the several assignments of error specifically. There appears to be nothing in the record that requires a reversal of the judgment.

Judgment affirmed.