Cross v. Wyoming Valley Beef Co.

• Citation: 57 Pa.Super. 351
• Decision Date: 15 July 1914
• Docket Number: 19-1914
• Parties: Cross, Appellant, v. Wyoming Valley Beef Company
• Court: Superior Court of Pennsylvania

57 Pa.Super. 351

Cross, Appellant,

v.

Wyoming Valley Beef Company

No. 19-1914

Superior Court of Pennsylvania

July 15, 1914

Argued March 3, 1914

Appeal by plaintiff, from order of C.P. Luzerne Co.-1913, No. 652 discharging rule for an interpleader in case of Grace A Cross v. The Wyoming Valley Beef Company.

Rule for interpleader.

O'Boyle J., found the facts to be as follows:

In the above-entitled case it appears from the testimony taken in support of and opposition to the granting of an issue to determine the ownership of certain property levied upon by the Wyoming Valley Beef Company against J. H. Cross, that on January 7, 1913, J. H. Cross, the husband of the plaintiff in this action, confessed judgment to the above-named defendant for $ 187.46 which was a balance due on a book account, for meats furnished to the said J. H. Cross, by the defendant company, said note being payable one day after date, and entered to No. 476, February Term, 1913.

It also appears that on June 5, 1913, the Wyoming Valley Beef Company issued a fi. fa. on said judgment, and Grace A. Cross, the plaintiff above named, being the wife of the defendant in the execution, filed a claim with the sheriff, in which nearly all of the goods levied upon by virtue of said execution, are claimed as her absolute property.

These goods were appraised by appraisers appointed by this court at $ 704.

On July 16, 1913, a rule was granted to show cause why an issue should not be directed, returnable August 2, 1913, which rule we are now called upon to dispose of.

Depositions were taken on behalf of the claimant and the execution creditor, and it was admitted by the claimant and by her husband, the defendant in the execution, that the goods levied upon were given by the husband to his wife in consideration of the sum of $ 1.00, as evidenced by bill of sale offered in evidence by the claimant.

J. H. Cross for several years conducted a butcher business at Nuangola, and witnesses were called who testified that he conducted the business in his own name, and made no change whatever either in depositing money in the bank, nor in the manner of conducting his business, after the alleged sale to his wife.

The claimant admits in her testimony, in answer to the question: " You bought all the rest of the goods which you claim here on October 5, 1912, from your husband?

A. All from him."

And in reply to the question: " Was the place sold to you or given to you?

A. I took it for wages. I have worked in the store all the time and I considered it was worth something.

Q. Who were you working for?

A. J. H. Cross.

Q. Who is J. H. Cross?

A. My husband."

In reply to a question by counsel for the defendant company, put to J. H. Cross, the defendant in the execution, he testified in answer thereto as follows:

" Q. On October 5, 1912, you practically gave to your wife everything you had?

A. When that man fooled me and didn't send me the meat, I just gave it to her.

Q. On October 5, 1912, at the time you transferred these goods to your wife, you owed the Wyoming Valley Beef Co. for a bill of merchandise, a large sum of money?

A. Not such a large sum.

Q. Well, $ 200?

A. I owed them some money, I don't know how much.

Q. Well, $ 150?

A. Well, about that."

Error assigned was order discharging rule for interpleader.

F. D. Vincent, for appellant, cited: Doran v. McConlogue, 150 Pa. 98; Troxell v. Stockberger, 105 Pa. 405; Burkle v. Coleman, 50 Pa.Super. 105.

David Oppenheimer, for appellee, cited: Guhl v. Frank, 22 Pa.Super. 531; Gerlach v. Coates, 44 Pa. 43; Wilson v. Silkman, 97 Pa. 509.

Before Rice, P. J., Orlady, Head, Porter, Henderson, Trexler and Kephart, JJ.

OPINION

HENDERSON, J.

Title to the property levied on by the sheriff is claimed by the appellant by virtue of a bill of sale dated October 5, 1912. It was property which the appellant's husband had used in his business as a butcher, which business the appellant at the time the bill of sale was made, and afterward, was conducting on her own account. The plaintiff in the execution was a creditor of the appellant's husband at the time the sale was made, the indebtedness being for meat sold to him. The consideration stated in the bill of sale is $ 1.00; the appraised value of the property was $ 704. The only other consideration than that recited in the bill of sale was that given by the appellant in her evidence where she said with reference to the acquisition of the property, " I took it for wages. I have worked in the store all the time and I considered it was worth something.

Q. Who were you working for?

A. J....