Latsha v. Latsha
| Decision Date | 04 March 1935 |
| Docket Number | 566 |
| Citation | 23 Pa. D. & C. 224 |
| Parties | Latsha v. Latsha |
| Court | Pennsylvania Commonwealth Court |
September term, 1932.
Petition to stay sheriff's sale.
J Dress Pannell and James E. Snyder, for petitioner.
Paul H. Rhoads and John C. Kelley, contra.
Judgment was entered in this case upon a note signed by the defendant, and the First National Bank of Elizabethville petitioned to have the judgment opened. That proceeding terminated in an opinion of this court, reported in Latsha v. Latsha, 39 Dauph. 281, in which we declined to open the judgment. In that proceeding we made the following order:
" Pending the determination of this rule, the execution issued on said judgment and all proceedings thereunder are directed to be stayed, lien of levy to remain."
The opinion above referred to was filed July 17, 1934. It had been delayed partly by counsel and partly by the serious illness of the writer. After the opinion was filed, the sheriff fixed August 24, 1934, as the day for the sale of the personal property upon which the levy had been made. The sheriff was unable to conduct the sale on August 24th, and fixed August 31st as the date on which the sale should be held. Neither the sheriff nor a deputy was able to go to the upper end of Dauphin County to post the necessary bills in order to advertise the sale properly and it was necessary to fix a later date. The sheriff thereupon fixed September 14, 1934. On that date the First National Bank of Elizabethville presented another petition asking that the sale be stayed, alleging that the petitioner was also a judgment creditor, averring that the sheriff had made no return of the original writ of fi. fa. issued, and that the adjournments of the sale on August 24th and 31st were illegal; that the sheriff had not given notice of the sale on September 14th as required by law and that the sale on the original fi. fa. would be unlawful. To that petition the defendant answered, showing the levy which had been made by the sheriff and that the postponement of the sale from August 24th to August 31st and from August 31st to September 14th was due entirely to the press of business which required the sheriff's attention and that the sheriff had, more than 6 days before the date set for the sale, posted six handbills, complying with all the requirements of law, averring that the sale of September 14th would not have been illegal. Later the plaintiff presented her petition, showing that the sheriff had returned the writ on November 26, 1934, without having made sale because the court on September 14, 1934, ordered all proceedings to be stayed on the petition of the First National Bank of Elizabethville and asking that a writ of venditioni exponas issue. We thereupon granted a rule on that petition.
The question now before us is whether the sheriff may proceed under the original execution or whether it is necessary to grant a writ of venditioni exponas. The First National Bank of Elizabethville seems to contend that because the property was not " speedily sold, or sold within a reasonable time" and because the plaintiff permitted the defendant to carry on his work and occupation with the property under levy, and without notice to the public and because there was not a true and legal advertisement or notice of the attempted sale, the execution issued by Lesta M. Latsha should be postponed to the levies and liens of the First National Bank of Elizabethville.
As to whether or not the proper notices were given, no replication having been filed, we should take the answer of Lesta M. Latsha to the bank's petition to be true, which answer avers that the sheriff specifically advised her that his deputy, Cornelius Nelley, posted the six handbills, as required by law. Counsel on both sides, however, verbally agreed that if anything was to be predicated upon this question either side would subsequently have the right to take depositions. We, however, do not predicate our judgment on whether the proper notices were given, inasmuch as the sheriff can yet give the notice required by law before any forthcoming sale.
As to the contention in the brief of the bank that the plaintiff had permitted the defendant to carry on his work and occupation with the property under levy and without restraint we have no evidence, nor even any averment in the bank's petition to that effect.
As to the delay, we have already stated that was caused partly by counsel and partly by the serious illness of the writer. We have no averment showing that the plaintiff in this execution in any way contributed to this delay and our familiarity with the case enables us to find that she did not do anything actively, at least, to cause the delay.
The matter therefore comes to the question as to whether or not the plaintiff had lost her rights under the original levy because the sheriff failed to make a return until November 26, 1934, and whether the writ of venditioni exponas should now issue.
It seems now to be settled by cases that are venerable with age, the doctrines of which have not been in any way later impaired, that a judicial order staying an execution until a rule is disposed of but providing that the lien of the levy shall remain does not deprive the execution creditor of his lien.
In Batdorff v. Focht & Brother, 44 Pa. 195, an execution was stayed by order of the court, and while those proceedings were pending subsequent executions were issued and it was held that even though the court did not order the lien of the levy to remain " the lien must nevertheless be regarded as preserved, for it is one of the vested legal rights of the plaintiff, and can no more be sacrificed by an edict of the court, without a hearing, than any of his other civil rights, whether of liberty or property." See also Realty Co. v. Gioshio, 50 Pa.Super 185, 187, 192.
In Spang v. The Commonwealth, 12 Pa. 358, 359, it is said:
" The mere rule to open the judgment interposed no obstacle to the exercise of the right to sell, with which the seizure invested the officer; nor did the return of his writ or his subsequent retirement from office deprive him of it. By the writ of fi. fa. he was clothed with the power of disposition, and having once seized the goods in execution of the writ, he was bound, even after his general authority had ceased by expiration of the term of his office, to proceed to sell, and to do every act necessary to its completion. The return of the fi. fa. would not prevent the exercise of this function, for a sheriff may sell after such return, and without a venditione " .
In Gillespie v. Keating, 180 Pa. 150, it is held:
" An execution creditor who places his writ in the hands of the sheriff with instructions to make the money upon it, and who does not countermand or modify his instructions, or in any way interfere with the execution of the writ, does not lose his lien by the delay of the sheriff in making the sale."
In Kightlinger's Appeal, 101 Pa. 540, it is held:
" Where, after judgment, execution and levy, the court grants a rule 'to show cause why the judgment should not be opened, and the defendant be let into a defence, all proceedings to be stayed in the meantime, lien of levy to remain,' the fact that nearly four years elapsed before the discharge of the rule, will not affect the lien of the levy, so as to give priority to subsequent execution creditors who had levied on the same goods." See also McGinnis v. Prieson, 85 Pa. 111.
A junior execution creditor cannot secure preference over a senior by the mere failure of the sheriff to make a return of the senior writ.
In Commonwealth v. Magee, 8 Pa. 240, 248, it is said:
" Though it would be better, regularly, to make return of all such writs, it seems to be settled he [the sheriff] need not do so, unless specially ruled" .
The lien of an execution continues beyond the return day on such...
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