Geha v. Baltimore Life Insurance Co.

• Decision Date: 02 October 1933
• Docket Number: 219-1933
• Parties: Geha v. Baltimore Life Insurance Co., Appellant
• Court: Pennsylvania Superior Court

168 A. 527

110 Pa.Super. 242

Geha v. Baltimore Life Insurance Co., Appellant

No. 219-1933

Superior Court of Pennsylvania

October 2, 1933

Submitted April 19, 1933.

Appeal by defendant from decree of C. P., Cambria County, September T., 1931, No. 1284, in the case of Adla Geha v. Baltimore Life Insurance Company.

Petition to stay an execution. Before Reed, P. J., orphans' court specially presiding.

The facts are stated in the opinion of the Superior Court.

The court discharged the rule. Defendant appealed.

Error assigned, among others, was the order of the court.

Reversed.

Percy Allen Rose, and with him Niles, Barton, Morrow & Yost, for appellant.

John M Bennett of Weimer & Bennett, for appellee.

Before Trexler, P. J., Keller, Cunningham, Baldrige, Stadtfeld Parker and James, JJ.

OPINION

Parker, J.

The questions raised by this appeal grow out of proceedings subsequent to the entry of judgment in the case between the same parties in the appeal at 110 Pa.Super. 236, 168 A. 525.

Judgment was entered May 5, 1932. Within four days from the entry of the judgment, the plaintiff caused a writ of fi. fa. to be issued on the judgment. No further proceedings were had upon this execution until June 6, 1932, when the plaintiff stayed the writ, filed a praecipe for an alias fi. fa., and instructed the sheriff to withhold action on the writ until further notice. On July 25, the defendant took an appeal to this court from the entry of the judgment filed a bond which was properly approved, and lodged the certiorari from the Superior Court in the office of the prothonotary of the court below on July 27, 1932, giving counsel for the plaintiff immediate notice of the appeal. On August 17, 1932, the plaintiff directed the sheriff to proceed with the execution on the writ of alias fi. fa. and caused an attachment execution to issue on the judgment, summoning St. Francis College of Loretto as garnishee. On August 29, 1932, a petition was presented to the court below for a rule to show cause why the execution should not be stayed and the appeal to the Superior Court should not operate as a supersedeas. That court, after argument, discharged the rule.

Did the appeal stay the alias writ of fi. fa. and prevent the issuing of the attachment execution? These questions were answered by the Supreme Court in the case of Charak v. Porter Co., 288 Pa. 217, 135 A. 730, and by this court in Schlippert v. Orth, 75 Pa.Super. 575. In the first of these cases, the Supreme Court said (p. 220) "Filing a bond in the court below at the time the praecipe is filed in this court, or at any time before filing the writ in the court below, is not perfecting the appeal within the act [Act of May 19, 1897, P. L. 67, as amended by Act of May 11, 1927, P. L. 972; 12 PS 1136]. Where an execution is issued prior to the day the writ is thus filed, it is valid if after three weeks from the date of judgment. Where an appeal has been entered within six [three] months with bond filed and approved as provided by law, it supersedes an execution issued thereafter: Hanhauser v. Pennsylvania & New...