| Pa. | Jul 1, 1856
The opinion of the court was delivered by
The right of a Court of Common Pleas to stay an execution, or to prevent one from issuing on a judgment in said court, has frequently been recognised, and is very common in practice.
Where the order is to stay the execution indefinitely, as it is the final adjudication of one’s right, it is the subject of revision, otherwise the party might be deprived of his judgment, or, what is the same thing, the fruits of it, without remedy.
Whilst the power to stay execution of a judgment is necessary to prevent injustice, it should never be exercised unless the case is plain, and the equity of the party asking the interposition of the court is free from doubt or difficulty.
In the case under consideration, Robert Patterson, having a judgment in the Court of Common Pleas of Juniata county against William H. Patterson, issued a fi. fa. in order to enforce its payment. William, the defendant, presented his petition to the court, asking that proceedings should stay upon the judgment, and alleged as a reason for such suspension that Robert, the plaintiff, was indebted to him in a sum greatly exceeding the judgment, growing out of a transaction which by agreement was to terminate on the 3d day of April, then next ensuing. He further alleged that if Robert was permitted to collect his judgment, the amount would be lost to him, as he would be unable to realize his claim against Robert. In addition, he offered to give security for the payment of any balance which might be found due Robert upon a final settlement of all their claims against each other.
To this petition Robert answered, denying any indebtedness to William, and averring that upon a final settlement William would owe him an amount greater than the amount of the judgment upon which proceedings were sought to be stayed. To repel any equity to William, growing out of the allegation of his (Robert’s) insolvency, he offered to give security to repay to William the amount of the judgment in the event that William should recover so much against him upon a final settlement of the unadjusted claims between them.
A replication was filed to the answer, in substance reasserting the allegations set forth in the petition. And it is stated in the opinion of the court, that William offered to confess judgment quod computet in an amicable action of account render, so as to facilitate the adjudication of the unsettled accounts.
Upon this condition of things, the Court of Common Pleas made an order staying proceedings upon the judgment indefinitely. In this we think there was error. The defence which William set up
It is impossible for us to know whether William’s allegation that Robert is largely indebted to him is true or not. With us the denial is of equal weight with the allegation; and perhaps, strictly speaking, it is conclusive until disproved. The difference at all events between the demands is, that one is liquidated and indisputable, and the other is denied under oath, and can only be established, if at all, by a course of litigation necessarily requiring a considerable period of time for its determination. It will not do to prevent the collection, of a judgment merely because the defendant alleges that he will be able to establish in a subsequent suit that the plaintiff is his debtor beyond the amount of the judgment.
To prevent the possibility of ultimate loss to the defendant in error, we shall require the plaintiff to make good his offer made in the Common Pleas and repeated here, to give security.
It is ordered that upon the plaintiff’s giving bond with sufficient surety, to be approved of by the Court of Common Pleas of Juniata county in term time, or a judge thereof in vacation, conditioned for the payment to William H. Patterson, of any amount which may be found due him from Robert Patterson, growing out of the contract of 3d April, a. d. 1849, not exceeding the amount of the debt and interest of this judgment, the order staying proceedings upon the judgment is directed to be set aside, and it is ordered that the plaintiff be -permitted to issue execution thereon; and the record is remitted to the Court of Common Pleas for the purposes aforesaid.