Shirk v. Caterbone

• Decision Date: 12 September 1963
• Citation: 201 Pa.Super. 544,193 A.2d 664
• Parties: K. L. SHIRK, Jr., Esq., v. Joseph F. CATERBONE and Nicholas Lombardo, Trading and Doing Business as the Rustic Inn. Appeal of Samuel J. CATERBONE.
• Court: Pennsylvania Superior Court

193 A.2d 664

201 Pa.Super. 544

K. L. SHIRK, Jr., Esq., v. Joseph F. CATERBONE and Nicholas Lombardo, Trading and Doing

Business as the Rustic Inn. Appeal of Samuel J. CATERBONE.

Superior Court of Pennsylvania.

September 12, 1963.

Michael J. Perezous, Lancaster, for appellant.

Joseph G. Eidson, Jr., Roger S. Reist, Lancaster, for appellee.

Before RHODES, P. J., and ERVIN, WRIGHT, WOODSIDE, WATKINS MONTGOMERY and FLOOD, JJ.

FLOOD, Judge.

In this case the appellee moved to quash the appeal because the appellant failed to file his brief or record at the time required by the rules of this court. The appellant filed his brief, but he has not yet filed the printed record nor has he filed a petition under Rule 52 to be excused from doing so or alleged any valid excuse for his failure to do so. He states in his answer to the petition to quash that the appellee is familiar with the papers filed of record. However, this furnishes no excuse, since the requirement of printing the record is for the benefit of the court as well as the parties.

We have nevertheless examined the question raised in the appeal and find no merit in the appellant's position. The appellant seeks priority for a charging order entered in his favor upon a judgment against a member of a partnership, as against a levy, made later, upon personal property of the partnership under a judgment obtained against the partnership by the plaintiff. The court below properly held that the changing order has priority. The levy against the partnership reached all the tangible personal property of the partnership levied upon, and was a lien upon the property. The charging order on the other hand, reached only the distributive share of the judgment-defendant Caterbone, one of the partners, in the assets of the partnership after all its debts had been paid and was not a lien upon any specific property of the partnership. Uniform Partnership Act, March 26, 1915, P.L 188 § i5(2)(c), 59 P.S. § 72(2)(c); Northampton Brewery Corp. v. Lande, 133 Pa.Super. 181, 2 A.2d 553 (1938). See Windom National Bank of Windom v. Klein, 191 Minn. 447, 254 N.W. 602 (1934).

Section 28 of the Uniform Partnership Act of March 26, 1915, P.L. 18, 59 P.S. § 75 provides that upon due application to a competent court by any judgment creditor of a partner the court which entered the judgment may 'charge the interest of the debtor partner with payment of the unsatisfied amount of such...