Lewis v. Linton
| Decision Date | 04 January 1904 |
| Docket Number | 149 |
| Citation | 207 Pa. 320,56 A. 874 |
| Parties | Lewis v. Linton, Appellant |
| Court | Pennsylvania Supreme Court |
Argued October 13, 1903
Appeal, No. 149, Oct. T., 1903, by defendant, from order of C.P. Armstrong Co., June T., 1897, No. 63, dismissing petition to stay a writ of execution in case of Ada Hannah Lewis et al., Executors of Samuel Lewis, Deceased, v. Elwina Linton. Reversed.
Petition to stay writ of execution.
The opinion of the Supreme Court states the case.
Error assigned was the order of the court dismissing the petition.
The decree of the court below is reversed with a procedendo.
R. A McCullough and Calvin Rayburn, for appellant, cited Horner v. Hower, 39 Pa. 126; Reynolds v. Barnes, 76 Pa. 427; Horton v. Hopf, 4 W.N.C. 381; Felt v. Cook, 95 Pa. 247; Melan v. Smith, 134 Pa. 649; Atkinson v. Harrison, 153 Pa. 472; Hawk v. Spade, 24 Pitts. L.J. 200.
R. L. Ralston, for appellee.
Before MITCHELL, C.J., DEAN, FELL, BROWN, MESTREZAT and POTTER, JJ.
Mrs. Linton, the defendant and appellant, and Thomas Cross, both citizens and residents of England, made a joint and several promissory note, dated June 10, 1896, and payable six months after date to Samuel Lewis, also a citizen and resident of England. Default in payment having been made, Lewis brought suit against Cross in England on the note and recovered judgment against him. Subsequently he issued a writ of foreign attachment in assumpsit on the note against Mrs. Linton in the court of common pleas of Armstrong county, this state, and after a jury trial, a verdict was rendered for the plaintiff for the full amount of the note and judgment was duly entered on the verdict on June 8, 1899. Samuel Lewis died on January 13, 1901, and shortly thereafter letters testamentary on his estate were granted by the proper authority in England, to Ada Hannah Lewis, Ernest Henry Davis and Algernon Edward Sidney, executors, named in the decedent's will.
To June term, 1903, of the common pleas of Armstrong county, an execution was issued on the judgment against Mrs. Linton in the name of "Ada Hannah Lewis, Ernest Henry Davis, Algernon Edward Sydney, executors of John Lewis, deceased," on which certain real estate of the defendant was levied and advertised to be sold. Application was made by the defendant to have the writ stayed but this was refused by the court below in the following order: "April 30, 1903, the within petition was duly presented and considered and it appearing to the court by statement of counsel, that in a former application for stay of proceedings, made to this court and appealed to the Supreme Court, a procedendo was awarded by the Supreme Court; the withing application for stay of writ is refused, without prejudice, however, to the defendant, in the event of the sale of the property levied upon, to be heard on an application to have the proceeds of said sale paid into court, and to have their rights determined therein as to any new matter arising since said procedendo was awarded." The record discloses that the sale of real estate made on the writ was subsequently set aside at the instance of the counsel for plaintiffs.
To September term, 1903, the same plaintiffs issued another execution on said judgment and levied upon and advertised Mrs. Linton's real estate for sale. The defendant thereupon presented her petition to the court below and prayed, inter alia, that the writ be stayed perpetually; that the court "order and decree said judgment at No. 63, June term, 1897, be marked satisfied of record by reason of the same having heretofore been fully paid;" and "to adjudge the action of said Ada Hannah Lewis, Ernest Henry Davis and Algernon Edward Sydney, in the capacity of executors of Samuel Lewis, deceased, as void and without authority of law in said proceedings in Pennsylvania." On this petition the court made the following order: From the two decrees thus made against her by the court below, the defendant, Mrs. Linton, has appealed.
It must be conceded that the petition presented by the defendants, the prayer of which was refused on April 30, 1903, and the accompanying affidavits were not in proper form and did not conform to the well established practice in such cases. The petition contained no facts whatever, but prayed the court to stay the writ for reasons set forth in the affidavits of Mrs. Linton and her husband. The facts relied on by the petitioners in support of their application should have been clearly and concisely averred in the petition, which should have been verified by an affidavit. The affidavits filed with this petition contained much irrelevant matter, which did not support the defendant's application to have the execution stayed.
The second petition presented...
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