113 Pa. 332 | Pa. | 1886
delivered the opinion of the Court,
In the case under consideration there are only two specifications, one of which is, “ The Court erred in discharging the rule of Charles I. Landis,” and the other, “ The Court erred in making absolute the rule of Robert A. Evans.” What these rules respectively were, in disposing of which it is insinuated the Court below committed manifest error, we are not informed by the pleadings, and we might with propriety, and perhaps ought to affirm the judgment, for the reason that there is no valid assignment of errors: but, by referring to the case stated in the record of the Court below, we find that the former was a rule to show cause why the sheriff should not be ordered to pay the proceeds sale of Diffenderfer’s personal property to Charles 1. Landis, the plaintiff in error, and the latter a rule to show cause why the same money should not be paid to Evans, the defendant in error. It appears Landis and Evans were both execution creditors of the defendant whose property was sold on both executions. Landis’s execution was issued and placed in the hands of the sheriff at 2.15 o’clock P. m. on February 26th, 1885, and Evans’s execution at 2 o’clock P. M. of the following day. Ordinarily there would be no question that the first execution would be entitled to the money, but the Court awarded it to the second execution, on the ground that the first was postponed in consequence of directions to the sheriff to not proceed immediately and levy on defendant’s property. What passed between the sheriff and Landis’s attorney’- is set forth in the case stated; and the question is whether, upon the facts there presented, the Court was right in holding that the first execution was postponed to the second.
It appears, in substance, that on the day the first execution was issued, Landis, the plaintiff therein, “told the sheriff’s deputy not to go to defendant’s house till next day, as the house was torn up ; ” and on the following morning he informed the sheriff that “ the ladies were cleaning up or fixing things up in the house,” and suggested to the sheriff that, if it made no difference to him, “ he might go up in the afternoon.” It cannot be doubted that what was thus said and
The order of Court is reversed, and the rule to show cause why the sheriff should not be ordered to pay the proceeds of sale to plaintiff, Charles I. Landis, is made absolute.