Reichner v. Reichner
| Decision Date | 14 October 1912 |
| Docket Number | 129 |
| Citation | 237 Pa. 540,85 A. 877 |
| Parties | Reichner, Appellant, v. Reichner |
| Court | Pennsylvania Supreme Court |
Argued May 13, 1912
Appeal, No. 129, Jan. T., 1912, by plaintiff, from judgment of C.P. No. 4, Phila. Co., Sept. T., 1907, No. 3226, on verdict for garnishee in case of Winfield K. Reichner v Samuel K. Reichner, Defendant, and Richard M. Cadwalader Garnishee. Affirmed.
Attachment execution. Before AUDENRIED, J.
From the record it appeared that on October 25, 1907, Winfield K Reichner entered judgment, in the Court of Common Pleas, No. 4, of Philadelphia County, against Samuel K. Reichner upon a judgment note for $7,700, dated August 8, 1905, and payable one day after date. The same day damages were assessed at $9,470 and an attachment execution issued against Richard M. Cadwalader and three other persons as garnishees. Subsequently rules were taken to dissolve the attachment and to open the judgment, but were discharged. Interrogatories and answers were filed, and a rule for judgment against Richard M. Cadwalader was entered and discharged. Cadwalader filed a plea, but appellant failed to print it in his paper-book. In his abstract of proceedings he says that "an issue was framed upon the usual general issue pleas being filed."
The case was called for trial February 7, 1912, before AUDENRIED, J., and resulted in a "verdict for the defendant in the issue, i.e. for garnishee Cadwalader." Plaintiff moved for a new trial and for judgment non obstante veredicto, but both motions were dismissed and judgment was entered on the verdict. Plaintiff appealed.
Upon the trial plaintiff showed that garnishee, who is a member of the bar, had been attorney for Mrs. Caroline Vautier in four suits brought against her by the defendant, Samuel K. Reichner, one of which had been marked to the use of the plaintiff, Winfield K. Reichner. On February 1, 1907, while these suits were still pending, an agreement was entered into between the parties to them and their respective attorneys, as follows:
In pursuance of the above agreement Mrs. Vautier placed in the hands of Mr. Cadwalader the $2,500.00, which appears, according to his testimony, to have been actually paid him by Mr. Reichner. At the time the attachment was served on him he had made payments under the agreement which reduced the amount in his hands to $1,533.76. He had paid none of the claims of the creditors of the estate of Charles Reichner, deceased, which, according to the adjudication of the Orphans' Court, amounted to $1,701.18. Mr. Cadwalader testified under objection, that none of these claims had been paid at the time of the trial, and that, when they should be paid, there would be nothing left from the fund for Samuel K. Reichner, the defendant.
Plaintiff claimed that he was entitled to a verdict against the garnishee for the balance of $1,533.76 remaining in his hands, but the trial judge held that the claims of the creditors of Charles Reichner were first entitled to be satisfied out of the fund and instructed the jury that, if they believed from the testimony that those claims had not been satisfied, they should find for the garnishee. If they believed that they had been paid, their verdict should be for the plaintiff for the amount of the unpaid balance. The jury found a verdict for the garnishee upon which judgment was entered.
Errors assigned among others were in the following form:
9. The learned trial judge erred in refusing plaintiff's motion for binding instructions.
10. The court below erred in refusing plaintiff's motion for a new trial.
11. The court below erred in refusing plaintiff's motion for judgment, non obstante veredicto.
The assignments of error are dismissed, and the judgment is affirmed.
Jay R. Grier, for appellant. -- The facts show that no trust for the benefit of creditors of Charles Reichner estate was created: Beans v. Bullitt, 57 Pa. 221; Wallace v. Wainwright, 87 Pa. 263; Johnson's App., 103 Pa. 373; Burger v. Burger, 135 Pa. 499.
Even if the facts show an assignment in trust for the benefit of the creditors of Charles Reichner estate, such assignment not having been recorded as required by law, is void, as against the attaching creditor: Potts v. Mfg. Co., 25 Pa.Super. 206; Driesbach v. Becker, 34 Pa. 152; Colvin v. White, 200 Pa. 277; Wallace v. Wainwright, 87 Pa. 263; Englebert v. Blanjot, 2 Whart. 240; McCleery v. Stoup, 32 Pa.Super. 42.
The testimony of appellee as to the creditors of Charles Reichner estate being still unpaid was irrelevant: McCormac v. Hancock, 2 Pa. 310.
Clarence E. Kuemmerle, with him Thomas Cadwalader and William D. Neilson, for appellee. -- An attaching creditor stands in the shoes of the debtor, and any equities or defenses that could be set up against the latter by the garnishee are equally available against the former: Farmers' & Mechanics' Bank v. Little, 8 W. & S. 207; Riddle v. Etting, 32 Pa. 412; Patten v. Wilson, 34 Pa. 299; Reed v. Penrose, 36 Pa. 214; Fessler v. Ellis, 40 Pa. 248; Kuhn v. Warren Springs Savings Bank, 20 W.N.C. 230; Jarecki Manufacturing Co. v. Hart, 5 Pa. Superior Ct. 422; Meigel v. Connecticut Fire Insurance Co., 5 Pa. Superior Ct. 491; Howard Oil & Grease Co. v. Hughes, 12 Pa.Super. 311.
The record of the estate of Charles Reichner, deceased, in the Orphans' Court of Philadelphia County was admissible to prove the claims of the creditors of the estate of Charles Reichner, deceased: Mengel v. Fire Ins. Co., 5 Pa. Superior Ct. 491.
Even if the agreement of February 1st, 1907, could be construed as an assignment for the benefit of creditors and void because not recorded under the provisions of the Act of March 24, 1818, Section 5, 7 Smith's Laws, 131 (2 Purdon's Digest, Stewart's, page 1902), the appellant could not successfully attach the fund in question.
The agreement of February 1st, 1907, is not an assignment for the benefit of creditors and it was not necessary that it be...
To continue reading
Request your trial