Lindsey v. Reid

101 Pa. 438 | Pa. | 1882

Mr. Justice Sterrett

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

The questions involved in this contention will be more yeadily understood by briefly referring, in limine, to the facts upon' which they arise.

In January 1877, the plaintiffs received from their debtor, D. M. Sample, an antedated judgment note for $923, as security for then existing as well as thereafter to be incurred indebtedness for bills of merchandise, with an agreement, as they allege, that if execution should be issued against him, by any of his creditors, the plaintiffs might forthwith proceed to collect the whole of their claim, whether fully due, according to their previous course of dealing, or not. A testatum fieri facias having been issued against Sample by one of his creditors in March 1877, the plaintiffs entered judgment on the note, issued execution for the full amount of their claim, and levied on personal property, sufficient to have satisfied the writ; but, on petition to an associate judge, in vacation, praying that the judgment be opened and defendant let into a defence, the writ Was stayed. On the first day of April Term 1877, a rule to show cause, etc., as prayed for, was granted, and in July following it was made absolute. The issue thus formed was tried in March 1879, and resulted in a verdict and judgment in favor of plaintiffs for $822.

When the order staying execution was obtained, the bond, of indemnity on which this suit was based was given for the purepose therein stated. After reciting that a petition had been presented to court, praying that the plaintiffs “be enjoined from, all further proceedings” on their writ, the condition of the bond, is that if the defendant in. the execution and Yan Doren, his assignee, under deed of voluntary assignment for the benefit of creditors, shall “indemnify the said plaintiffs from all damages that may be sustained by reason of such injunction or stay of proceedings, then this obligation shall be null and void, otherwise to be and remain in full force and virtue.” Pending the issue, between plaintiffs and the defendant in the original judgment, the property that had been levied on disappeared; and, when the issue was finally determined, nothing could be realized either from the defendant therein or his assignee. This suit was then brought on the bond of indemnity to recover damages occasioned by the stay of proceedings.

The main ground of defence is presented in the point embraced in the fourth specification of error, viz: “ The plaintiffs’ execution was stayed only until the first day of the next term, and there was no further action or order of court restraining them from proceeding to collect their money until the 10th day of July, a period of two and a half months thereafter; and, if plaintiffs could have made their money by proceeding to a sheriff’s sale of the property levied on, at any time between the 23d of April and the 10th of July 1877, and omitted to do so, the verdict must be for the defendant.” In connection with the admission of counsel, that the. property embraced in the levy was of sufficient value, at any time between the last mentioned dates, to have satisfied the execution, the learned judge affirmed the point and directed a verdict for the defendant. In this, as also in his answer to the plaintiffs’ points, covered by the first two assignments of error, Which substantially embody the converse of the foregoing proposition, we think there was error.

The order made at chambers, staying the execution “until the first Monday of next term,” must be considered in connection with the rule of court authorizing any judge, in vacation, to entertain applications for relief against process, etc., and make .such orders therein as to him may appear just and reasonable, The rule expressly provides that an order so made, staying execution and the like, “shall be binding until the next termand, if not then objected to and rescinded by the court, shall- stand in full force as an order of the court.” An essential part of the relief, prayed for and obtained in this case, was a stay of execution not only until the rule to show cause was obtained, but until it was disposed of by opening the judgment and letting the defendant into a defence. Filing the bond of indemnity, with approved security, was made a condition precedent to the order staying execution ; and it was evidently intended to apply to the stay after as well as before the first day of the next term. The order made at chambers was neither objected to nor rescinded by the court, and therefore, by the express terms of the rule, it became an order of the court, and as such continued in full force. It was unquestionably so regarded by both parties while the application to open the judgment was pending. If, in the meantime, the plaintiffs had attempted to proceed with their execution, it might have been objected on behalf of the defendant in the writ, that by direction of the associate judge, in vacation, he had given bond with approved sureties conditioned to indemnify the plaintiffs against all damages they might sustain by reason of the stay of proceedings; and that the order, not having been rescinded as contemplated by the rule above quoted, became and continued, by virtue thereof, to be an order of court, staying proceedings until the issue was determined. This objection would have been unanswerable, and the plaintiffs would have been compelled to desist. We are therefore of opinion that the learned judge erred in his answer to the plaintiffs’ third and fourth points respectively; and also in affirming defendants’ third point and directing a verdict for the defendant.

The third specification of error is also sustained. The plaintiffs’ -seventh point therein referred to contains a correct statement of the law applicable to a case like the present, and it should have been affirmed.

Judgment reversed and a venire facias de novo awarded.