Hagy v. Poike

• Decision Date: 26 March 1894
• Docket Number: 24
• Citation: 160 Pa. 522,28 A. 846
• Parties: Hagy & Bittner v. Poike, Appellant. Slimmons's Appeal
• Court: Pennsylvania Supreme Court

28 A. 846

160 Pa. 522

Hagy & Bittner v. Poike, Appellant. Slimmons's Appeal

No. 24

Supreme Court of Pennsylvania

March 26, 1894

Argued March 5, 1894

Appeal, No. 24, Jan. T., 1894, by R. Slimmons & Co., et al from order of C.P. Northampton Co., Feb. T., 1893, No. 24 refusing issue in Hagy & Bittner v. Poike. Affirmed.

Rule to show cause why issue should not be granted to determine disputed facts concerning distribution of money arising from sheriff's sale of personal property.

The petition for the rule alleged that the petitioners, R Slimmons & Co., and Hugh O'Donnell, were judgment creditors of Frederick A. Poike, and that they had issued execution upon their judgments; that, prior to the issuance of their writs, Poike had confessed two judgments, one in favor of Hagy & Bittner, the appellees, for the amount of $1,507.03, and the other in favor of Solomon Tannhauser for the amount of $187.56; that execution was issued upon both these confessed judgments and the personal property of the said Poike was levied upon and sold by the sheriff.

The petitioners further represented that there were material facts in dispute between them and the other alleged judgment creditor, Hagy & Bittner, arising from the said sale by the sheriff of the personal property of the said Poike under the execution of the said confessed judgment of Hagy & Bittner. That at the time of the confession of this judgment, the said Poike was indebted to a large number of creditors, among them the petitioners, to an amount largely in excess of the value of his property, and that he did not have the means to pay the said judgment and his other creditors. That the judgment confessed by the said Poike to the said Hagy & Bittner was fraudulent, collusive and without consideration. That the said Poike was insolvent during the time that the alleged indebtedness of Hagy & Bittner was created, and that by means of said confession of judgment the title to the said personal property of the said Poike was transferred to the said Hagy & Bittner, and by them to the said Poike with intent to defraud the petitioners.

The following opinion was filed by SCHUYLER, P.J.:

"This is a petition for an issue under act of June 16, 1836, § 87, P.L. 777, Purd. 763, as modified by act of April 20 1846, § 2, P.L. 411, Purd. 764, regulating the granting of issues 'where there shall be disputes concerning the distribution of money arising' from sales upon execution. The controversy is over the plaintiff's execution, the petition containing an allegation that the judgment on which that execution was issued is 'fraudulent, collusive and without consideration.' The question is whether the evidence in support of this allegation creates a 'dispute' within the meaning of the above mentioned acts of assembly.

"It is conceded that the amount of the judgment in controversy (it was a confessed judgment) was made up as follows: Bill of Hagy & Trexler, $227.69; bill of Hagy & Bittner, the plaintiffs in the judgment, $778.35; and two notes aggregating $500 in favor of D. R. Hagy, who was a member of both of the firms just mentioned. If these three items represented honest claims, there is nothing in the policy of the law that would prevent their being included in one judgment by agreement of the parties, even though the claims were held in different rights. As a scheme to prevent the multiplication of costs, such a course would be commendable, in the absence of any evidence of a fraudulent purpose, of which there is none here. The confession of judgment was secured by Mr. Hagy, who rightfully represented all the claims included in the judgment. If he and Poike were engaged in a conspiracy to defraud the latter's creditors in the way indicated, it would most likely have manifested itself in the taking of additional judgments to cover the claim of Hagy & Trexler and Hagy's individual claim, but that was not done.

"Thus far, therefore, we find nothing that casts the slightest suspicion on the integrity of the judgment. Were then the three items, which went to make up the amount of the judgment, honest claims? In other words, was the judgment based upon a full and valuable consideration? Both Hagy and Poike, the only witnesses examined on the subject, so testify most emphatically. Against this testimony the petitioners have adduced nothing tangible. That Hagy & Bittner bought in the property, a stock of store goods, at the sheriff's sale, and left it in the possession of Poike, who is continuing the business as their agent, is an every-day occurrence, without the slightest taint of fraud. Nor can we see what we have to do with the fact that Hagy & Bittner have never settled with a man by the name of Tannhauser, a co-execution creditor, for his share of the proceeds of sale.

"Much stress is laid by the petitioners on alleged contradictions in the testimony of Mr. Hagy, and on his failure to produce certain books of account in answer to a subpoena duces tecum. Without going into details we think the failure to produce the books is...