O'Donnell v. Mullin
| Citation | 27 Pa. 199 |
| Parties | O'Donnell versus Mullin. |
| Decision Date | 01 January 1857 |
| Court | Pennsylvania Supreme Court |
Graham, for plaintiff in error.—The parties were before the justice, and this is a judgment confessed: Feger v. Kroh, 6 Watts 294. From this there was no appeal. It was waived in the original note, and because it was a judgment confessed: 8 Watts 371; 5 Penn. L. J. 416. It is submitted that notwithstanding the case of Rowan v. King, 1 Casey 409, that the intention was under the $100 law to have all matters under that sum disposed of before the justice, and the right of appeal is not general: Act of 20th March, 1810, §§ 45, 20, 48.
If it was not by confession, it was by default; from that he could not appeal without paying the costs on the execution: Act of 20th March, 1810, § 6; Stiles v. Power, 1 Ash. 407. If neither by default nor confession, it was on a note waiving all stays and exemptions: Act 1810, § 13. This section confines the right of appeal on notes of this kind to a judgment by default, and that could only be on payment of the costs, and the constable was not bound to return the execution till the costs were paid: Shuman v. Fautz, 1 P. R. 62; Ludwig v. Britton, 3 W. & Ser. 447. He may proceed to sell, and the purchaser will have a good title: Patterson v. Pierpont, 7 Watts 337.
The appeal was not filed till 28th May, 1856. The judgment before the justice remained until it was filed: Lee v. Farrell, Com. P. Phila. 14th May, 1853, MS.; Smith v. Steel, 1 Ash. 80; at least so far as to protect an innocent purchaser for value: Feger v. Kroh, 6 Watts 294; Feger v. Keefer, 6 Id. 297; Tarbox v. Hays, Id. 398; Act 1705. He had his remedy against the constable, and should not be allowed to recover against the purchaser.
J. N. Purviance and Bredin, for defendant in error.
If a justice of the peace issues execution on a judgment within the time allowed for an appeal, and the appeal is taken afterwards, it is the duty of the justice to revoke the execution.
When the justice notifies the constable that an appeal has been entered, and the execution superseded, the constable is bound to return the execution and proceed no further upon it.
If the constable persists in selling the defendant's property under an execution thus superseded, he is a trespasser as much as if he had no process at all in his hands.
The appeal strikes the execution dead, and...
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August v. Gilmer
...punishment for contempt. McWilliams v. King et al., 32 N. J. Law, 21; Hopkins v. Sears, 14 Vt. 494, 39 Am. Dec. 236; O'Donnell v. Mullin, 27 Pa. 199, 67 Am. Dec. 458. As he had no power to pass the title by his sale, of course the creditor obtained none. As the invalidity of the sale was sh......
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Sweeney v. Girolo
... ... Haak, 88 Pa ... 238; Shields v. Miltenberger, 14 Pa. 76; Camp v ... Wood, 10 Watts, 118; O'Donnell v. Mullin, ... 27 Pa. 199; Herman on Executions, 419; Vansyckel's Ap., ... 13 Pa. 128; Camp v. Wood, 10 Watts, 118; Fowler ... v. Eddy, 110 Pa. 117; Wall v ... ...
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Kramer v. Wellendorf
...Judgment affirmed. Mr. Charles Corbet (with him Mr. M. M. Davis and Mr. Harry A. Hall), for the appellant. Counsel cited: O'Donnell v. Mullin, 27 Pa. 199; Leonard v. Dillon, 76 Pa. 44; Womelsdorf v. Heifner, 104 Pa. 1; Beale v. Dougherty, 3 Binn. 434; Berry v. Baker, 1 Br. 224; Hastings v. ......
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Jenkins Land & Live Stock Co. v. Atwood
...of the request. We consider that the principle applies in either case. August v. Gilmer, 53 W. Va. 65, 44 S. E. 143;O'Donnell v. Mullin, 27 Pa. 199, 67 Am. Dec. 458;Hopkinson v. Sears, 14 Vt. 499, 39 Am. Dec. 236. To hold otherwise would permit the mortgagee to induce the sheriff to sell th......