Truitt Brothers & Co. v. Ludwig, Kneedler & Co.

• Decision Date: 01 January 1855
• Citation: 25 Pa. 145
• Parties: Truitt Brothers & Company versus Ludwig, Kneedler & Company.
• Court: Pennsylvania Supreme Court

25 Pa. 145

Truitt Brothers & Company versus Ludwig, Kneedler & Company.

Supreme Court of Pennsylvania.

ERROR to the Common Pleas of Cambria county.

Kopelin, for Truitt & Co.—The effect of the bond was to discharge the judgment which it secures, and plaintiffs can have recourse to the sheriff and his sureties: 12 Ser. & R. 41; 5 Barr 517; Tr. & Haley's Prac. vol. 1, 778.

The party having the fund in his own hands cannot relinquish it to the injury of a third person. Ludwig & Kneedler may yet sue and recover on the bond.

As respects third persons, a release of a levy on personal property by plaintiff is an extinguishment of the debt. The levy in this case was released by the stay of execution: Duncan v. Harris, 17 Ser. & R. 466.

Seizing goods in execution to the value of the debt, operates

a discharge of the judgment, and this whether sold or not: Hunt v. Breading, 12 Ser. & R. 37. The object of the bond was security, and not the bonâ fide one of levy and sale. Ludwig & Kneedler are, therefore, postponed: Commonwealth v. Strembach, 3 Rawle 341; Weir v. Hale, 3 W. & Ser. 285; Smith's Appeal, 2 Barr 231; 8 Harris 46.

If the levy under the first fi. fa. was discharged, the alias could not avail them; but this issued on the 7th March, 1853, before the first instalment on the bond (26th April) became due, and was therefore void. The object in keeping it passive in the hands of the sheriff, was to keep off other creditors; this the law will not tolerate: Earl's Appeal, 1 Harris 46. The object was lien, and not sale.

R. L. Johnston, for defendant.—The judgment of Truitt, Brother & Co. was entirely void: Act of Assembly 20th March, 1810; 10 Watts 118. The parties in propria persona must appear before the justice; an appearance by attorney or agent is insufficient to give jurisdiction: 10 Watts 118, Camp v. Wood.

The plaintiffs did not release their levy; nor was there any third person affected, as the appellees had not obtained their judgment till nearly three months after. The cases cited by the appellants do not aid them; and the issuing of the alias, before appellees' judgment was obtained, secured a lien on defendant's goods that could not be shaken. The staying of the original fi. fa. injured no one, for no one had acquired rights; and if appellants had gone on to sell on their very suspicious judgment, the alias would have taken the money.

The bond did appellants no injury; the sheriff would have sold on the fi. fa., instead of taking the bond, before their rights had accrued.

The opinion of the Court was delivered by LEWIS, C. J.

This is an appeal by Truitt, Brother & Co. from the decree of the Common Pleas awarding the proceeds of sale of personal estate of G. H. Muikerheide to Ludwig, Kneedler & Co. It is objected against the judgments of the appellants that they were confessed before a justice of the peace for sums over $100, without the personal appearance of the plaintiffs. The defendant, Muikerheide, appeared voluntarily in person, and plaintiffs appeared by agent. An amicable action was entered by consent. The plaintiffs' demand was on a promissory note, the date and amount of which was stated, and the defendant confessed judgment. In general every person may act in person or by agent, and the Act of Assembly, in regulating proceedings before justices of the peace, recognises this right. It speaks of the parties appearing "either in person or by agent," and in no part of it prohibits an appearance by agent. Indeed such a prohibition might lead to gross injustice. A defendant may be prevented from attending in person either by unavoidable absence on a distant joutney, or by sickness, or other urgent necessity. A plaintiff may be in the same predicament. And in the case of the latter, he so frequently resides at a distance from his debtor, that he is under the necessity of sending his claim to an agent or attorney for collection. To deny him the benefit of his judgment for a just debt, voluntarily confessed by his debtor, would produce extensive mischief, without any compensating advantages. The objection that judgments might be confessed in order to defraud creditors, has nothing substantial in it that does not apply to judgments confessed in the Common Pleas. The 14th section of the Act of 1810, which authorizes judgments by confession before justices of the peace for sums over $100, makes ample provision for investigating them if tainted...