Watkins v. Justice

256 Pa. 37 | Pa. | 1917

Opinion by

Mr. Justice Frazer,

The German Savings and Deposit Bank, the use-plaintiff, held five mortgages against defendant, one of which, a first lien, with interest and costs added, represented a debt of $62,500.41. Foreclosure proceedings were begun on another mortgage, a second lien, C. B. Watkins, mortgagee, for use of the bank, upon which judgment was obtained August 13,1913, for the sum of $22,827, on which judgment a pluries levari facias was issued June 18, 1915, and fourteen brick dwellings belonging to defendant levied upon. Conformably to this writ the sheriff advertised the property for sale and sold it July 9,1915, to the use-plaintiff for the sum of $7,980.55. The purchase-money was paid February 18,1916, and on the following day a deed was duly executed and acknowledged by the sheriff conveying the property to the purchaser. Before its delivery, however, the Ellwood Lumber Company, appellant, a judgment creditor of defendant, filed exceptions to the sale alleging inter alia failure of the sheriff to post the premises as required by law; that the use-plaintiff previous to the sale collected rents from tenants occupying the several properties aggregating $50,-000, a sum more than the total debt represented by the judgment under which the sale was made; and that the price paid was totally inadequate, the property being worth at least $100,000 and would bring that sum at a public sale properly conducted. Exceptant also averred that at a previous sale, afterwards set aside by the court, at request of counsel, the property was sold to the same purchaser for the sum of $36,200. The exceptions concluded with a proposal to bid at least $16,000 upon a resale, which proposal, in a replication subsequently filed, was changed to an offer to bid $86,000 for a clear title to the property. An answer filed by the German Savings & Deposit Bank denied the alleged irregularities in conducting the sale and the inadequacy of price, admitting, however, the receipt of rents and a previous sale at which it bid $36,200 for the property and averring the rents so received are, by agreement with tbe mortgagor, to be applied to the mortgages held by tbe bank in their inverse order, and that no part of tbe income will be applicable to either tbe first or second mortgages, as tbe net amount will not exceed tbe indebtedness secured by tbe three junior encumbrances. Tbe answer further set out that if exceptant were to bid $86,000 at a resale such bid would be ineffective for tbe reason tbe liens and encumbrances ahead of tbe judgment of exceptant far exceed tbe amount of tbe proposed bid.

On April 26, 1916, a rule was entered by exceptant to ,take depositions of witnesses “to be read in evidence at tbe trial of tbe above cause in case of tbe death, absence out of tbe State, or other inability of such witnesses to attend.” This rule, on motion of tbe use-plaintiff, was quashed for tbe reason that “no affidavit to take tbe testimony of ancient, infirm or going witnesses is filed of recorcj. as required by rule of court.” Tbe exceptions were called for argument May 5,1916, at which time appellant filed a motion requesting the court to appoint a commissioner to take testimony and also renewed its offer tó bid $86,000 at a resale of- tbe property. This motion was refused and tbe exceptions dismissed, from which order this appeal is taken..

Rule 78 of tbe Court of Common Pleas of Allegheny County provides that “Tbe testimony of witnesses to be used on tbe bearing of motions and rules to show cause shall be taken on reasonable notice before any justice of the peace or other competent authority and if deemed necessary a rule for tbe purpose may be entered of course by the prothonotary on application of either party and no witness shall be examined at bar without special order of tbe court.” Rule 74 of tbe same court provides: for tbe taking of “depositions of ancient, infirm and going witnesses within five miles of tbe court bouse on twenty-four hours’ notice or on four days’ notice in other parts of Allegheny County, provided tbe party filed an affidavit- of the facts necessary to entitle him to such rule.” In taking the rule for depositions appellant’s motion was apparently made under Rule 74 instead of Rule 78. Under the former, an affidavit is required which in this case was not furnished. That the court below in its discretion might waive strict compliance with the rule, if circumstances warrant, or continue the case and permit appellant to file a new rule, is Avell settled. Under the circumstances of this case we cannot say the court abused this discretion either in the enforcement of its rules (Webster v. Monongahela River Consolidated Coal & Coke Co., 201 Pa. 278; American Structural Steel Co. v. Annex Hotel Co., 226 Pa. 461), or in refusing to further delay argument on the exceptions : Pringle v. Pringle, 59 Pa. 281; Commonwealth v. Ezell, 212 Pa. 293.

The third assignment of error, refers to the action of the court beloAV in refusing to set aside the sale. Inasmuch as there is no testimony in support of the exceptions the question must be determined in vieAV of the facts averred in the exceptions filed by appellant, the answer filed by the use-plaintiff and the replication thereto. The encumbrances against defendant’s property ahead of appellant’s judgment consist of a first mortgage of $55,000 which, with costs and expenses, is represented by the judgment of $62,500.41; a second mortgage represented by the judgment under which the sale was made amounting to $22,827; and three other mortgages of $10,000, $5,000 and $5,000 respectively, making a total of $105,327.41 encumbrances. Adding to this the sum of $7,980.55, the amount bid by the use-plaintiff for the property, Avhich represents the amount of actual costs of the proceeding and taxes against the property, makes the sum necessary to cover the use-plaintiff’s claim against the property $113,307.96. As against this amount there was received by the use-plaintiff certain income from the properties, which proceeds it avers will be properly applied. Should we omit the three small mortgages claimed by appellant to be without consideration, of which however there is no' proof, we have the two judgments and the sum bid at the sale, amounting to $93,307.96, due the bank. Assuming appellant on a resale should bid the amount of $86,000 that sum is insufficient to cover the first and second mortgages held by the use-plaintiff and no advantage would result to appellant from such resale.

A well settled rule is that setting aside a sheriff’s sale is within the discretion of the court below and in absence of manifest abuse of discretion this court will not interfere. It is also definitely settled that inadequacy of price alone is not a sufficient reason for setting aside a sale: Stroup v. Raymond, 183 Pa. 279; Chase v. Fisher, 239 Pa. 545; Snyder v. Snyder, 244 Pa. 331 The judgment is affirmed.