Gilmore v. Alexander , 268 Pa. 415 ( 1920 )

Opinion by

Mr. Justice Walling,

This is a proceeding on an execution attachment, and the main question is the sufficiency of the evidence to rebut the presumption of payment of a judgment over twenty years old. In November, 1895, plaintiff recovered judgment against the defendant and issued an execution attachment. Defendant’s father, John Alexander, had recently died and his executors were summoned as garnishees. After a contest, the will of John Alexander was finally sustained by a decision of this court in 1903. When he died he' was trustee for three of his children under the will of their grandfather, George Jones, late of the State of Delaware, deceased. After John Alexander’s death a new trustee was appointed in that state, who in 1900 filed a bill in equity in the United States Circuit Court for the Eastern District of Pennsylvania against the executors of the Alexander estate, for an accounting. This resulted in a protracted litigation involving, inter alia, on application to vacate the appointment of the new trustee, which was finally granted by the chancellor of Delaware in 1912. The bill in equity, however, was not formally dismissed until 1917. Meantime, in 1913, the three children, including appellant, filed a bill in equity against John Alexander’s executors, in the United States court at Philadelphia, for substantially the same cause of action, which (in 1917) resulted in a final decree in favor of the defendant herein for the sum of $42,300.96. Thereafter, the surviving executor of the Alexander estate filed an account, upon the adjudication of which in 1918 the said sum was awarded appellant as a creditor, the award being finally confirmed by the orphans’ court, January 10, 1919. While named as a legatee in his father’s will, there was nothing in the hands of the executors to which he was entitled as such; so until the conclusion of the equity suit in 1917, it could not be determined that the executors had in their hands any funds subject to the attachment; nor could the amount thereof be definitely known until the confirmation of the adjudication. In February, 1897, the plaintiff, Mrs. Gilmore, assigned the judgment to John Alexander’s executors, who, since that time, have occupied the dual position of use-plaintiff and garnishee. Pursuant to the adjudication, on order of the orphans’ court, the surviving executor paid appellant all of the sum above stated, except $1 1,500, retained on account of the attachment.

On February 28, 1919, the appellant, Archibald Alexander, filed a petition in this case praying for a non pros, and dissolution of the execution attachment for want of prosecution. To this the surviving executor, as garnishee and use-plaintiff, filed a sworn answer setting up as cause for the delay the averments that until the adjudication it had no property of defendant in its hands to answer the attachment and that the filing of interrogatories would have been vain; and also stating “that, from the day when said judgment was marked to its use to the date of this answer, the said defendant, Archibald A. Alexander, has continuously resided outside of this Commonwealth and at no time within said period has this respondent known of any property of said defendant which it could attach or levy on in satisfaction of said judgment. This respondent specifically avers that no part of said judgment, which has been marked to its use, has been paid, but the same with interest from the date it was entered, is justly due and owing to respondent, and this respondent specifically directs the attention of the court to the fact that nowhere in the petition upon which said rule was granted is there any averment on the part of the said Archibald A. Alexander, defendant, that said judgment or any part of it has been paid.” To this, defendant filed a replication, but withdrew it, and submitted the case upon petition and answer. On March 14,1919, the court below filed an order discharging the rule for non pros, and dissolution. March 25, 1919, defendant filed a petition for an issue, to which an answer was filed and the rule discharged. Later, defendant asked for an order on the use-plaintiff to file interrogatories to the garnishee and, after answer filed, the rule therefor was made absolute. The interrogatories were accordingly issued, and the answers thereto showed the said fund of $11,500 of defendant in the garnishee’s hands. Then defendant filed pleas and an affidavit of defense wherein he set np the presumption of payment, as twenty-three years had elapsed since the judgment was entered and attachment issued.

The case went to trial before a jury, and, in addition to offering the records above referred to, plaintiff called William P. Gest, president of the Fidelity Trust Company, who testified he had been connected with the company since 1889 and that no part of the judgment had been paid to the use-plaintiff. He based this assertion in part on his own knowledge and in part on the books and records of the company, and the manner in which its trust business was conducted. His evidence was also to the effect that there had been other trust officers to whom payment might have been made; but, if so, it would have come to his knowledge, except in case of embezzlement. He further testified that the trust company never had knowledge of any property of defendant out of which the judgment could have been collected, and also stated his belief that defendant had resided continuously outside of Pennsylvania. In the latter statement he was corroborated by the fact that the attachment issued in 1895 was returned “nihil habet as- to defendant,” and that thereafter defendant brought suit in the United States court at Philadelphia, apparently as a nonresident, and also by his tacit admission of that fact upon his rule for non pros, of the attachment. The defendant submitted no evidence, and counsel for both sides asked for binding instructions and conceded that the questions involved were for the court, who directed the jury to find for the plaintiff for $10,231.65, being the original judgment and interest. The trial court overruled defendant’s motion for judgment n. o. v. and caused judgment to be entered upon the verdict; from which defendant brought this appeal.

In our opinion the case was rightly decided. There was no conflict in the evidence and, by conceding that the case hinged on questions of law, defendant impliedly admitted the credibility of the witness, but challenged the sufficiency of the evidence. The burden of proof was upon the plaintiff, as the judgment was over twenty years old, and the question is, was the evidence as a whole sufficient to overcome the presumption of payment? Where, as here, there is no question of credibility, its sufficiency is for the court: Delany v. Robinson, 2 Wh. 503; Beale v. Kirk, 84 Pa. 415; 30 Cyc. 1295. The nature and strength of such presumption is well stated by Mr. Justice Strong in Reed v. Reed, 46 Pa. 239, 241, as follows: “That presumption which the law raises after the lapse of twenty years, that a bond or specialty has been paid, is in its nature essentially different from the bar interposed by the statute of limitations to the recovery of a simple contract debt. The latter is a prohibition of the action, the former, prima facia, obliterates the debt. The bar is removed by nothing less than a new promise to pay, or an acknowledgment consistent with such a promise. The presumption is rebutted, or, to speak more accurately, does not arise where there is affirmative proof beyond that furnished by the specialty itself, that the debt has not been paid, or where there are circumstances that sufficiently account for the delay of the creditor.” See also Coleman v. Erie Tr. Co., Admr., 255 Pa. 63; Devereux’s Est., 184 Pa. 429; and O’Hara v. Corr, 210 Pa. 341. However, such affirmative evidence may be direct or circumstantial (Second Natl. Bank of Titusville v. Thompson, 44 Pa. Superior Ct. 200), but must make a prima facie case of nonpayment (McDowell v. North Side Bridge Co., 247 Pa. 190), and so convincing as to justify the conclusion that the debt is not in fact paid (Eby v. Eby’s Assignee, 5 Pa. 435). In passing upon the sufficiency of the testimony to rebut the presumption of payment, the court must consider the united strength of all the evidence and circumstances, and each case depends largely on its own facts. The presumption of payment is strengthened by each year after the twenty (Richards v. Walp, 221 Pa. 412; Cannon v. Hileman, 229 Pa. 414), so. that after thirty years it can only be overcome by clear proof: Peters’s App., 106 Pa. 340; Miller v. Overseers of the Poor, 17 Pa. Superior Ct. 159. The presumption of payment is also strengthened by the death of the debtor: Gregory v. Com., 121 Pa. 611; Fidelity T. & Tr. Co. v. Chapman, 226 Pa. 312. Here the evidence of nonpayment is satisfactory and convincing. The judgment was transferred to the use-plaintiff within fifteen months after it was entered and Mr. Gest testified that payment thereafter was not made or it would appear on the company’s books, and it does not; also that under its method of business it would have come to his knowledge, and it did not; further, that such payments were made by check drawn to the company’s order, and no such was received. Time, it might possibly have been paid to another trust officer and embezzled by him. That is the only reasonable theory of payment consistent with Mr. Gest’s testimony, and that cannot be accepted in face of the presumption of innocence. There is also the evidence tending to show the continued non-residence of the defendant and his lack of known property from which the judgment could have been collected; and a cogent reason for the delay was the continued litigation in the federal court, rendering it impossible to prosecute the attachment until its termination in 1917. In fact, the amount in the hands of the garnishee could not be definitely known until the confirmation of the adjudication in January, 1919. Possibly the litigation Was not vigorously prosecuted, if so, no one was more responsible therefor than the defendant who was interested therein and a party thereto.

The conduct of the defendant was inconsistent with the theory of payment. He was in full life and if he had paid the judgment he knew when, how and to whom; he also knew that such payment would end the attachment. Yet, he comes into court not asking that the judgment be satisfied, as he naturally would, under the Act of March 14, 1876, P. L. 7, had he paid it, but praying for a non pros, and a dissolution of the attachment for lack of prosecution. And when the trust company filed a sworn answer accounting for the delay and expressly averring that no part of the judgment had ever been paid, he permitted that averment to stand unchallenged and submitted the question to the court on the pleadings —thereby admitting the truth of the answer. Waiving the question of its conclusiveness as an admission of record, it was evidence tending to rebut the presumption of payment. Having failed in his effort to non pros, and dissolve the attachment, he asked and obtained a rule on the use-plaintiff to file interrogatories and thus to proceed with the attachment; but why proceed with the attachment if it was already dead by reason of payment of the judgment? Defendant has filed in this case, as above stated, petitions and affidavits but has avoided any averment of actual payment of the judgment. In view of his own conduct and all of the evidence, the trial court was amply justified in holding that the presumption of payment had been rebutted.

The opinion of the court below refers to the fact that the defendant, although present in court, failed to testify to the payment of the judgment. Upon reflection, we are of the opinion that the legal aspect of the case was not affected thereby. The burden was upon plaintiff to overcome the presumption of payment, and the court had to decide the case upon its evidence and not by what defendant, who offered no testimony, failed to prove. If plaintiff made out a prima facie case it was entitled to judgment, otherwise not.

There is no merit in the suggestion that the execution attachment had failed by reason of plaintiff’s laches. The statute does not limit the duration of the lien of such writ (see opinion of the late Judge Hawkins in Wilkinson’s Est., 30 P. L. J. [O. S.] 401), and the delay in prosecuting the same was fully accounted for. Moreover, the order of court refusing to non pros, the attachment is not assigned as error.

The assignments of error are overruled and the judgment is affirmed.