Gilmore v. Alexander

• Decision Date: 31 December 1920
• Docket Number: 220
• Citation: 268 Pa. 415,112 A. 9
• Parties: Gilmore to use v. Alexander, Appellant
• Court: Pennsylvania Supreme Court

112 A. 9

268 Pa. 415

Gilmore to use v. Alexander, Appellant

No. 220

Supreme Court of Pennsylvania

December 31, 1920

Argued October 4, 1920

Appeal, No. 220, Jan. T., 1920, by Archibald A. Alexander from judgment of C.P. No. 4, Phila.Co., Dec. T., 1894, No 693, on verdict for plaintiff, in case of Margaret Van Cleek Gilmore, to use of Fidelity Trust Co., remaining executor of John Alexander, deceased, v. Archibald A. Alexander, defendant, and Fidelity Trust Co., remaining executor of John Alexander, deceased, garnishee.Affirmed.

Attachment execution sur judgment.Before FINLETTER, J.

The opinion of the Supreme Court states the facts.

Verdict and judgment for plaintiff for $10,231.65.Archibald A. Alexander appealed.

Error assigned, among others, was (7) refusal of motion for judgment for defendant n.o.v., quoting record.

The assignments of error are overruled and the judgment is affirmed.

M. Hampton Todd, for appellant.-- The evidence produced at the trial was insufficient to rebut the presumption of payment arising from lapse of time: Van Loon v. Smith,103 Pa. 238;Lash v. Von Neida,109 Pa. 207;Biddle v. Bank,109 Pa. 349;Carter v. Turnpike Co.,208 Pa. 565;Breneman's App., 121 Pa. 641;Cannon v. Hileman,229 Pa. 414;Kline v. Kline,20 Pa. 503;Miller v. Overseers of Poor,17 Pa.Super. 159;Second Natl. Bank of Titusville v. Thompson,44 Pa.Super. 200;Gregory v. Com., 121 Pa. 611.

The failure of plaintiff to prosecute the attachment execution with due diligence required a binding instruction from the court in favor of defendant and for judgment for defendant notwithstanding the verdict for plaintiff: Wherry v. Wherry,179 Pa. 84;Reed v. Penrose,36 Pa. 214;Roig v. Tim,103 Pa. 115;Waring v. R.R.,176 Pa. 172;Neel v. McElhenny,189 Pa. 489;Upsal Street, 22 Pa.Super. 150.

H. Gordon McCouch, of Dickson, Beitler & McCouch, for appellee.-- The testimony as taken at the trial was sufficient to overcome any presumption of payment of the judgment: Neely v. Grantham,58 Pa. 433;Ellwanger v. Moore, 206 Pa. 234.

While there may be cases in which abandonment of an attachment would be implied from delay, even great delay when satisfactorily explained will not have that effect: Cookson v. Turner, 2 Binney 453.

Before BROWN, C.J., STEWART, MOSCHZISKER, FRAZER, WALLING, SIMPSON and KEPHART, JJ.

OPINION

MR. JUSTICE WALLING:

This is a proceeding on an execution attachment, and the main question is the sufficiency of the evidence to rebut the presumption of payment of a judgment over twenty years old.In November, 1895, plaintiff recovered judgment against the defendant and issued an execution attachment.Defendant's father, John Alexander, had recently died and his executors were summoned as garnishees.After a contest, the will of John Alexander was finally sustained by a decision of this court in 1903.When he died he was trustee for three of his children under the will of their grandfather, George Jones, late of the State of Delaware, deceased.After John Alexander's death a new trustee was appointed in that state, who in 1900 filed a bill in equity in the United States Circuit Court for the Eastern District of Pennsylvania against the executors of the Alexander estate, for an accounting.This resulted in a protracted litigation involving, inter alia, on application to vacate the appointment of the new trustee, which was finally granted by the chancellor of Delaware in 1912.The bill in equity, however, was not formally dismissed until 1917.Meantime, in 1913, the three children, including appellant, filed a bill in equity against John Alexander's executors, in the United States court at Philadelphia, for substantially the same cause of action, which (in 1917) resulted in a final decree in favor of the defendant herein for the sum of $42,300.96.Thereafter, the surviving executor of the Alexander estate filed an account, upon the adjudication of which in 1918 the said sum was awarded appellant as a creditor, the award being finally confirmed by the orphans' court, January 10, 1919.While named as a legatee in his father's will, there was nothing in the hands of the executors to which he was entitled as such; so until the conclusion of the equity suit in 1917, it could not be determined that the executors had in their hands any funds subject to the attachment; nor could the amount thereof be definitely known until the confirmation of the adjudication.In February, 1897, the plaintiff, Mrs. Gilmore, assigned the judgment to John Alexander's executors, who, since that time, have occupied the dual position of use-plaintiff and garnishee.Pursuant to the adjudication, on order of the orphans' court, the surviving executor paid appellant all of the sum above stated, except $11,500, retained on account of the attachment.

On February 28, 1919, the appellant, Archibald Alexander, filed a petition in this case praying for a non pros. and dissolution of the execution attachment for want of prosecution.To this the surviving executor, as garnishee and use-plaintiff, filed a sworn answer setting up as cause for the delay the averments that until the adjudication it had no property of defendant in its hands to answer the attachment and that the filing of interrogatories would have been vain; and also stating "that, from the day when said judgment was marked to its use to the date of this answer, the said defendant, Archibald A. Alexander, has continuously resided outside of this Commonwealth and at no time within said period has this respondent known of any property of said defendant which it could attach or levy on in satisfaction of said judgment.This respondent specifically avers that no part of said judgment, which has been marked to its use, has been paid, but the same with interest from the date it was entered, is justly due and owing to respondent, and this respondent specifically directs the attention of the court to the fact that nowhere in the petition upon which said rule was granted is there any averment on the part of the said Archibald A. Alexander, defendant, that said judgment or any part of it has been paid."To this, defendant filed a replication, but withdrew it, and submitted the case upon petition and answer.On March 14, 1919, the court below filed an order discharging the rule for non pros. and dissolution.March 25, 1919, defendant filed a petition for an issue, to which an answer was filed and the rule discharged.Later, defendant asked for an order on the use-plaintiff to file interrogatories to the garnishee and, after answer filed, the rule therefor was made absolute.The interrogatories were accordingly issued, and the answers thereto showed the said fund of $11,500 of defendant in the garnishee's hands.Then defendant filed pleas and an affidavit of defense wherein he set up the presumption of payment, as twenty-three years had elapsed since the judgment was entered and attachment issued.

The case went to trial before a jury, and, in addition to offering the records above referred to, plaintiff called William P. Gest, president of the Fidelity Trust Company, who testified he had been connected with the company since 1889 and that no part of the judgment had been paid to the use-plaintiff.He based this assertion in part on his own knowledge and in part on the books and records of the company, and the manner in which its trust business was conducted.His evidence was also to the effect that there had been other trust officers to whom payment might have been made; but, if so, it would have come to his knowledge, except in case of embezzlement.He further testified that the trust company never had knowledge of any property of defendant out of which the judgment could have been collected, and also stated his belief that defendant had resided continuously outside of Pennsylvania.In the latter statement he was corroborated by the fact that the attachment issued in 1895 was returned "nihil habet as to defendant," and that thereafter defendant brought suit in the United States court at Philadelphia, apparently as a nonresident, and also by his tacit admission of that fact upon his rule for non pros. of the attachment.The defendant submitted no evidence, and counsel for both sides asked for binding instructions and conceded that the questions involved were for the court, who directed the jury to find for the plaintiff for $10,231.65, being the original judgment and interest.The trial court overruled defendant's motion for judgment n.o.v. and caused judgment to be entered upon the verdict; from which defendant brought this appeal.

In our opinion the case was rightly decided.There was no conflict in the evidence and, by conceding that the case hinged on questions of law, defendant impliedly admitted the credibility of the witness, but challenged the sufficiency of the evidence.The burden of proof was upon the plaintiff, as the judgment was over twenty years old, and the question is was the evidence as a whole sufficient to overcome the presumption of payment?Where, as here, there is no question of credibility, its sufficiency is for the court: Delany v. Robinson,2 Wh. 503;Beale v. Kirk,84 Pa. 415;30 Cyc. 1295.The nature and strength of such presumption is well stated by Mr. Justice STRONG in Reed v. Reed,46 Pa. 239, 241, as follows: "That presumption which the law raises after the lapse of twenty years, that a bond or specialty has been paid, is in its nature essentially different from the bar interposed by the statute of limitations to the recovery of a simple contract debt.The latter is a prohibition of the action, the former, prima facia, obliterates the debt.The bar is removed by nothing less than a new promise to pay, or an acknowledgment consistent with such a...