189 A. 470 | Pa. | 1936
Argued December 4, 1936. The legal plaintiff obtained judgment by confession against Samuel Melnick, his wife, Helen Melnick, and William Rabinowitz, May 13, 1929. Two days later attachment execution issued; the writ was returned N.H. as to the three defendants, and served on Joseph Binenstock, garnishee. On June 1, 1931, the judgment was marked to the use of Samuel Melnick, one of the defendants.1 On June 10, 1931, Melnick executed and *184 delivered a release to Helen Melnick, discharging her of all liability arising out of a certain equity suit instituted by him against her in Common Pleas No. 5; the instrument then continued in these words: "I do further covenant that with relation to . . . the judgment [that on which the attachment execution issued] . . . marked to my use . . . neither I nor my heirs, executors, administrators and assigns, will proceed under said judgments against Helen B. Melnick, reserving, however, any rights to proceed under said judgments against any of the other defendants therein named. I do hereby further release Helen B. Melnick, from all other debts, dues, accounts, bonds, covenants, contracts, agreements, judgments, claims and demands, and all right and interest and all rights, interest and estates to which I, as her husband, may now or at any time in the future be entitled in her real, personal or other estate, or to which I would be entitled in the event of her death."
The next step recorded in the docket took place July 21, 1931, when the use-plaintiff Melnick issued interrogatories to the garnishee, who answered and pleaded nulla bona. On that issue the case was called for trial but went over.
In 1935, Helen Melnick, now Rosenbaum, took steps to assert her right under Melnick's agreement of June 10, 1931, as related to this execution. She brought the matter to the attention of the court by a petition for a rule on Melnick to show cause why the attachment execution should not be dissolved on the ground that Melnick had agreed not to proceed against her; copies of agreements relied on, and also the interrogatories and answers of the garnishee, were attached to her petition. A rule was granted. Melnick answered with procedural objections but made no denial of his contracts. *185 The learned court below made the rule absolute. It is this order of which Melnick now complains.
As he agreed not to proceed on this judgment against his former wife, it is difficult to find any reason — none of substance has been suggested on his behalf — why he should not be restrained from proceeding with the execution against her. The effect of the order is to restrain or stay the execution; the name given by petitioner to describe the relief sought is not as significant as its legal effect. Stay of execution is common: Sinking Fund Commissioners of Philadelphia v.Philadelphia,
This is a clear case. No issue of fact is made by the answer. Instead of answering the petition fully the use-plaintiff filed what he called an answer "in the nature of preliminary objections to the petition of defendant . . ." We are not advised that the rules of the court below provide for any but a complete answer. Under Rule 782 the undenied averments in the petition are admitted. See Gliwa v. U.S. Steel Corp.,
The effect of the agreement now before us was not considered or decided in Jos. Melnick B. L. Ass'n v. Melnick, et al.,
We find no abuse of discretion in making the rule absolute. The order is affirmed, costs of the appeal to be paid by appellant; the record is remitted for further proceedings on the judgment against Rabinowitz.