193 Pa. 475 | Pa. | 1899
Opinion by
1. A motion is made to quash this appeal, on the ground, first, that no appeal was in fact taken, and secondly, that even if what was done was equivalent to an appeal, it was too late.
By section 7 of the Superior Court act, June 24, 1895, P. L. 217, there may be an appeal from the judgment of that court if “ specially allowed by the Superior Court itself, or by any one justice of the Supreme Court.” By section 8 it is directed that the bond for appeal to the Superior Court shall include “ costs in the Supreme Court, if the case shall reach that tribunal, and (shall be) conditioned also to pay whatever judgment or decree may be entered against the appellant, either by the Superior Court or the Supreme Court. ... No further bond need be entered in case of an appeal from the Superior Court to the Supreme Court.” “No writ of certiorari shall be needed to remove the record to the Superior Court from the court below, but the perfecting of the appeal shall be treated as equivalent to the issue and execution of said writ.” The prothonotaries of the Supreme Court at Philadelphia, Harrisburg and Pittsburg are ex officio prothonotaries also of the Superior Court (sec. 4). From these provisions it is a fair inference that the Superior Court act did not require or contemplate the issue of any certiorari to remove the record from that court to the Supreme Court, and it would have been a reasonable practice to treat the allowance by this Court of an appellant’s petition, as a perfected appeal. But by the Act of May 19, 1897, P. L. 67, the whole system of appeals was revised and amended, so that that act should in the words of its 22d section “ furnish a complete and exclusive system in itself.” By section 1 appeals are to be entered in the court to which the appeal is taken, and by section 2, the prothonotary of said court is to issue a writ in the nature of a writ of certiorari directed to the court from which the appeal is taken, and “ no appeal shall be
Secondly, with regard to time. The act of 1897 already cited, in section 4 requires that “ an appeal from the Superior Court to the Supreme Court must be taken and perfected within three calendar months from the entry of the order, judgment or decree of the Superior Court.” In the computation of this period, however, so far as the perfecting of the appeal is concerned, the time that the application is pending in this Court must be deducted. In the pressure of business and the multiplicity of cases it is not always possible for the Court to dispose of these applications immediately, and it is the universal rule that while matters are held sub judice the running of time, as it affects the parties litigant before the Court, is suspended. The petition or application for allowance of an appeal must be presented within three months. As to this the statute is mandatory. The petition in this case was in time. The correct practice is not to present it to a single judge, but to file it with the prothonotary of the proper district, who will submit it to the Court, if in session, or to the most convenient member in vacation. And the time of the application will be determined as of the date of such filing with the prothonotary. The act of 1895 gives any one justice the authority to allow the appeal, and while in clear or urgent cases this authority will be exer
In the present case, as already said, the allowance of the appeal will be considered as practically a compliance with the rule, and the record permitted to be perfected by a certiorari nunc pro tunc. The motion to quash the appeal is therefore dismissed.
2. On the merits we are constrained to take a different view from that of the Superior Court. The facts as reported by the auditor were that two executions were issued by appellant on March 2, being the first in date, and a third by the Platt-Barber Company on April 20. The record showed only one levy, and that on one of appellant’s writs, though the deputy sheriff testified that he levied and sold on all three. The auditor, without passing on this question, refused to find that the appellant’s writs were not issued and executed in good faith for the collection of his debt, and accordingly awarded the fund to appellant. The Court, expressing a contrary view on this point, nevertheless confirmed the report on the ground that only one levy was shown. The case then went to the Superior Court which reversed the judgment on both grounds, holding that there were legal levies on all the writs, and that appellant’s writs should be postponed for delay in enforcing them. We do not find it necessary to consider or pass upon the first ground, as we are of opinion that the auditor was right in his view of the second.
The rule is well established that an execution which is not put in the sheriff’s hands with the bona fide intention of collecting the debt, but merely to be held as a security, or to prevent other creditors from coming upon the debtor’s goods, is fraudulent as to them, and will be postponed to subsequent levies. And stay, or unusual delay of the proceedings, allow
The earlier cases undoubtedly applied the presumption of fraud with great strictness, and exhibit a tendency to treat it as a rule juris et de jure. But it was never divorced'intentionally from its true principle, and the later decisions have treated the question more liberally as one of fraud in fact to be determined in each case by the evidence: Broadhead v. Cornman, 171 Pa. 322; Landis v. Evans, 113 Pa. 332; Stroudsburg Bank’s Appeal, 126 Pa. 523.
In the present case the evidence shows a clear intent to collect the money, never relinquished or interrupted, and restrained only by an indulgence as to time, as much in the interest of the creditor as of the debtor. The testimony of the deputy sheriff shows that the debtor was negotiating for a loan that would enable him to pay the debt, and had at least one person willing to advance the money if secured as proposed. The extent of the delay was not fixed by appellant, but by the deputy, who acted partly on his own confidence that the debtor would secure the loan. As the plaintiff’s executions amounted to more than $1,200, and the store property only produced $700 at the sale, it was manifestly good business policy, as well as humanity on the part of the appellant, to indulge efforts of the debtor to secure the money by loan. There was not a trace of any inten
Judgment reversed and judgment of the common pleas affirmed with costs.