Northampton Brewery Corp. v. Lande

• Decision Date: 18 November 1938
• Docket Number: 217-1938
• Citation: 133 Pa.Super. 181,2 A.2d 553
• Parties: Northampton Brewery Corporation v. Lande (et al., Appellants)
• Court: Pennsylvania Superior Court

2 A.2d 553

133 Pa.Super. 181

Northampton Brewery Corporation v. Lande (et al., Appellants)

No. 217-1938

Superior Court of Pennsylvania

November 18, 1938

Argued October 12, 1938.

Appeal from judgment of M. C. Phila. Co., Feb. T., 1937, No. 731, in case of Northampton Brewery Corp. v. Beatrice Lande, and David Lande et al., trading as Dave's Grill and The Keg.

Attachment execution proceeding. Before Crane, J., without a jury.

The facts are stated in the opinion of the Superior Court.

Finding and judgment for plaintiff and against garnishees. Garnishees appealed.

Error assigned, among others, was refusal of judgment n. o. v.

Judgment reversed.

Cecil P. Harvey, with him David A. Flacker, for appellants.

Abram P. Piwosky, with him Samuel I. Sacks, of Sacks and Piwosky for appellee.

Before Keller, P. J. Cunningham, Baldrige, Stadtfeld, Parker and Rhodes, JJ.

OPINION

Keller, P. J.

The plaintiff, Northampton Brewery Corporation, obtained a judgment against Beatrice Lande, and issued an attachment execution thereon summoning the said Beatrice Lande and David Lande, (her husband), trading as Dave's Grill, and The Keg, as garnishees.

After interrogatories to the garnishees had been filed by the plaintiff and answers thereto had been filed by the garnishees, the action came on for trial before Judge Crane sitting without a jury, who found for the plaintiff and against the garnishees in the sum of $ 614.70, the full amount of the judgment with interest, on which judgment was entered against the garnishees. The garnishees appealed.

The garnishees contended in the court below, and urged upon this court, that, as they were husband and wife, the restaurant businesses which they carried on, trading as Dave's Grill and The Keg respectively, were owned and conducted by them as tenants by the entireties and were not subject to attachment levy or execution to satisfy a judgment against either husband or wife individually. We are not required, in this case, to decide whether a husband and wife who operate a joint business as a firm -- essentially a partnership business -- are, as respects the business so carried on, to be regarded as tenants by the entireties, with the incidents attaching to such tenancy, rather than as partners, for a basic error in the proceedings, apparent on the face of the record, requires us to reverse this judgment.

It is well settled in this State, that the interest of a partner in a going partnership business, where there has been no settlement of his partnership account, nor segregation or liquidation of his interest in the partnership, and no money has been lent by the partner to the partnership, is not subject to attachment execution on a judgment recovered against the individual partner: Knerr v. Hoffman, 65 Pa. 126, 129; Horne & Co. v. Petty, 192 Pa. 32, 38, 40, 43 A. 404; Importers & Traders Nat. Bank v. Lyons, 195 Pa. 479, 482, 46 A. 70; Rankin v. Culver, 303 Pa. 401, 403, 154 A. 701 (1931).

The reason underlying this principle is that the interest of a partner in a going partnership, where there has been no settlement of his account, is not a debt due to the partner by the partnership, within the language or intendment of the Act of June 16, 1836, P. L. 755, Section 35, page 767, authorizing the attachment in execution of debts due a defendant in a judgment. While the Act of April 8, 1873, P. L. 65, which contained specific directions for the levy and sale in execution of the interest of the judgment debtor in the partnership, has been repealed by the Uniform Partnership Act of March 26, 1915, P. L. 18, p. 32, we are not certain that the general power to proceed against the partner's interest in the partnership by writ of fieri facias, which existed before the passage of the Act of 1873 and was referred to by Judge Sharswood in 1870, on page 129, of Knerr v. Hoffman, supra, has been taken away. The Uniform Partnership Act of 1915, supra, does provide in Section 25(2)(c) that "A partner's right in specific partnership property is not subject to attachment or execution, except on a claim against the partnership," and in Section 28(1), "On due application to a competent court by any judgment creditor of a partner, the court which entered the judgment, order, or decree, or any other court, may charge the interest of the debtor partner with payment of the unsatisfied amount of such judgment debt with interest thereon; and may then or later appoint a receiver of his share of the profits, and of any other money due or to fall due to him in respect of the partnership, and make all other orders, directions, accounts and inquiries which the debtor partner might have made, or which the circumstances of the case may require."

The phrase "may charge the interest of the debtor partner with payment of...