Goodyear Service, Inc. v. Moore

• Decision Date: 23 March 1936
• Docket Number: 22
• Citation: 184 A. 116,321 Pa. 320
• Parties: Goodyear Service, Inc., v. Moore, Appellant
• Court: Pennsylvania Supreme Court

184 A. 116

321 Pa. 320

Goodyear Service, Inc., v. Moore, Appellant

No. 22

Supreme Court of Pennsylvania

March 23, 1936

Argued January 13, 1936

Appeal, No. 22, Jan. T., 1936, by defendant, from order of C.P. Bucks Co., April T., 1934, No. 24, in case of Goodyear Service, Inc., v. David W. Moore. Order affirmed.

Petition and rule to set aside sheriff's sale.

The opinion of the Supreme Court states the facts.

Petition dismissed, opinion by BOYER, J. Petitioner appealed.

Error assigned, among others, was refusal to set aside sale.

Order affirmed at appellant's cost.

I Louis Rubin, for appellant.

Isaac J. Vanartsdalen and Edward G. Biester, for appellee, were not heard.

Before KEPHART, C.J., SCHAFFER, MAXEY, DREW, LINN and BARNES, JJ.

OPINION

MR. CHIEF JUSTICE KEPHART:

Appellee secured a judgment for $70 against appellant before a justice of the peace. A transcript of the judgment was filed with the prothonotary without a certificate showing that an execution had been issued and returned "no goods." A fi. fa. then issued from the prothonotary and on it appellant's undivided half-interest in a farm was sold to Georgetta Moore. Although appellant had waived inquisition on six preceding and seven subsequent judgments there was no waiver on the judgment in question and no inquisition was held before the sale of appellant's real estate. The sale was confirmed, a deed was delivered to the purchaser, and distribution of the sum realized was made to appellant's creditors. No steps were taken by appellant to stay the writ and no exceptions were filed to the sheriff's return or confirmation thereof. After delivery of the deed by the sheriff, appellant asked to have the sale set aside. The rule granted on his petition was discharged and this appeal followed.

Appellant presents two questions for consideration: first, the validity of an execution issued on a judgment from a justice's court when the transcript shows no execution was made and returned nulla bona in the justice's court. Second, the validity of a sale of real estate without inquisition on a fi. fa. issued on a judgment which does not waive inquisition and condemnation.

There are no appellate court decisions upon the first question, but the almost unanimous opinion of the lower court cases that have considered it support the conclusion that it is only an irregularity and waivable: Stroudsburg Bank v. La Bar, 7 C.C. 163; Kunkel v. Snoddy, 1 Pearson 36; Dunn v. Fries, 3 Clark 113; Contra, Moore v. Risden, 3 Clark 408. The Act of March 20, 1810, P.L. 208, agrees in substance with the Act of June 24, 1885, P.L. 160. The Act of 1885 provides that: "Before any execution shall be issued in the court of common pleas on such transcript, the . . . justice of the peace or alderman, before whom such judgment shall have been obtained, shall first certify that an execution has been issued on said judgment, and the constable, to whom the same was directed, has made return that no goods could be found sufficient to satisfy said demand." The act does not state that failure to file a certificate voids the subsequent levy and sale. The provision requiring an execution and return of no goods from a justice's court benefits the small debtor by relieving him of the larger costs incident to a sheriff's execution. This policy is clearly shown by comparison with the Act of 1889, P.L. 176, which provides that where a justice's judgment is for $100 and upwards a transcript may be filed in the prothonotary's office "without first having an execution issued by the justice and a return of nulla bona by a constable." As the Act of 1885 was for the benefit of appellant, he could and did waive its benefits by dilatory action.

We said in Poor v. Colburn, 57 Pa. 415, that "It is a well-established rule of practice that application to set aside proceedings for irregularity should be made as early as possible, or, as it is commonly said, in the first instance." In Swanger v. Snyder, 50 Pa. 218, where an attachment execution issued on a transcript without a prior execution and return of "no goods," we held such omission an irregularity since defendant had notice thereof and failed to object before the sale thereon.

There is a conflict of authority in this State as to whether a sale on fi. fa. without inquisition or waiver thereof is void. An early case and our later cases indicate the sale only voidable, while others would seem to hold it void. In the first case on this point, Spragg v. Shriver, 25 Pa. 282, plaintiff in ejectment contended defendant's title was bad because it was procured at sheriff's sale on a vend. ex. without prior waiver of inquisition and condemnation. Speaking of a sheriff's sale without inquisition or waiver, the court said: "The law provides that he shall have notice of the sale, and gives him the exclusive right to object to or waive irregularities. Under such circumstances, if he permits a purchaser to pay his money and receive the deed duly acknowledged, without objection, the money can never be recovered back by the purchaser. . . . If the objection comes too late for the relief of the purchaser, it certainly is too late for the defendant in the execution. . . . The last is guilty of gross negligence in permitting an innocent person to be injured by proceedings which he had the power to arrest or set aside. The law will not permit him thus to make a profit out of his own wrong. If these views be correct, the case is stronger against the defendant in the execution after he has actually secured the payment of his debts out of the proceeds of sale." In Clough v. Welsh, 229 Pa. 386, we said: "In the present case it is true that the sheriff's return to the fieri facias shows a levy on the real estate of the defendant, Alexander Thompson, and does not show inquisition or condemnation. But this would be an irregularity only, which, under the authority of Spragg v. Shriver, 25 Pa. 282, could only be objected to within a reasonable time; that is, before the confirmation of the sale and the acknowledgment of the sheriff's deed."

With reference to a sale without waiver, the court stated in Collins v. Phillips, 236 Pa. 386: "But at most this is only an irregularity which, under the authority of our cases must be objected to within a reasonable time, and it has been frequently held that such reasonable time is before the confirmation of the sale and the acknowledgment of the deed: ...