Greenberger v. Schwartz

• Decision Date: 06 May 1918
• Docket Number: 315
• Citation: Greenberger v. Schwartz, 261 Pa. 265, 104 A. 573 (Pa. 1918)
• Parties: Greenberger et al., Appellants, v. Schwartz et al
• Court: Pennsylvania Supreme Court

104 A. 573

261 Pa. 265

Greenberger et al., Appellants, v. Schwartz et al

No. 315

Supreme Court of Pennsylvania

May 6, 1918

Argued February 25, 1918

Appeal, No. 315, Jan. T., 1917, by plaintiffs, from order of C.P. Lackawanna County, Nov. T., 1915, No. 167, on issue to determine the validity of the lien of a judgment, in case of Israel Greenberger, Leo Frishman, Max Judkovicz, doing business as Greenberger & Co. v. M. Schwartz & Jacob Rosenfeld, doing business as Schwartz & Rosenfeld. Affirmed.

Issue to determine the validity of the lien of a judgment.

Exceptions to the report of R. W. Archbald, Esq., referee. Before NEWCOMB, J.

The opinion of the Supreme Court states the facts.

The referee found in favor of the defendants.

The court dismissed the exceptions to the report of the referee. Plaintiffs appealed.

Errors assigned were in dismissing the exceptions.

Judgment affirmed.

William J. Fitzgerald, with him John P. Kelly, for appellants. -- The lien of the judgment was not void but voidable: First Natl. Bank of Sayre v. Bartlett, 35 Pa.Super. 592; Lamorelle v. Nass, 30 Pa.Super. 190; Frazee v Nelson, 179 Mass. 456, 61 N.E. 40; Rochester Lumber Co. v. Locke, 72 N.H. 22, 54 Atlantic 705.

Before BROWN, C.J., POTTER, STEWART, MOSCHZISKER and WALLING, JJ.

OPINION

MR. CHIEF JUSTICE BROWN:

Moses Schwartz and Jacob Rosenfeld were partners, doing business in the City of Scranton, under the firm name of Schwartz &amp Rosenfeld. On June 17, 1912, Rosenfeld executed and delivered, in the name of the firm, to Greenberger & Co., a promissory note, containing a confession of judgment, for $2,525.55, payable to their order two months after date. At the time this note was executed Schwartz & Rosenfeld were neither insolvent nor in contemplation of bankruptcy. On October 7, 1916, the appellants entered judgment on the note against the defendants individually and as a firm, but the same was subsequently stricken off as to Schwartz, who had not signed the obligation, and was opened as to Rosenfeld and the firm of Schwartz & Rosenfeld, to enable them to set up the defense of a discharge in bankruptcy. At the date of the entry of the judgment the said firm and the two individual members thereof were insolvent within the meaning of the bankruptcy act, and this was well known to the appellants. On November 4, 1915, within a month after the said judgment had been entered, a petition in bankruptcy was filed by the creditors of the firm of Schwartz & Rosenfeld, in the District Court of the United States for the Middle District of Pennsylvania, against the defendants as a firm and as individuals, and, on the 26th of the same month, they were duly adjudged bankrupts by said court. They subsequently filed their schedules in the bankruptcy proceedings, and named the plaintiffs therein as creditors. On January 10, 1916, the defendants in due form offered a composition to their creditors, which was thereafter duly confirmed by the said District Court, and was carried out by the defendants as bankrupts. The issue on the opened judgment was referred to a very learned referee, by whose report judgment was directed to be entered for the defendants, on the ground that, under the bankrupt act, the judgment entered by the appellants was null and void, and, from the judgment so entered by the court below in confirming the report of the referee, there is this appeal by Greenberger & Co. On it two...