Landis v. Evans , 113 Pa. 332 ( 1886 )

Mr. Justice Sterrett

delivered the opinion of the Court,

As lias been repeatedly said, the assignments of error are an essential part of the pleadings in this Court, and as such should be so complete in themselves as not to require reference to other parts of the record. When the case is disposed of and the record returned to the Court below, the precipe, assignments of error and plea thereto are all the papers that usually remain of record in this Court, as the basis of our judgment or decree, as the case may bo. It must be obvious, therefore, that each specification of error should, in and of itself, present the question we are called upon to decide.

In the case under consideration there are only two specifications, one of which is, “ The Court erred in discharging the rule of Charles I. Landis,” and the other, “ The Court erred in making absolute the rule of Robert A. Evans.” What these rules respectively were, in disposing of which it is insinuated the Court below committed manifest error, we are not informed by the pleadings, and we might with propriety, and perhaps ought to affirm the judgment, for the reason that there is no valid assignment of errors: but, by referring to the case stated in the record of the Court below, we find that the former was a rule to show cause why the sheriff should not be ordered to pay the proceeds sale of Diffenderfer’s personal property to Charles 1. Landis, the plaintiff in error, and the latter a rule to show cause why the same money should not be paid to Evans, the defendant in error. It appears Landis and Evans were both execution creditors of the defendant whose property was sold on both executions. Landis’s execution was issued and placed in the hands of the sheriff at 2.15 o’clock P. m. on February 26th, 1885, and Evans’s execution at 2 o’clock P. M. of the following day. Ordinarily there would be no question that the first execution would be entitled to the money, but the Court awarded it to the second execution, on the ground that the first was postponed in consequence of directions to the sheriff to not proceed immediately and levy on defendant’s property. What passed between the sheriff and Landis’s attorney’- is set forth in the case stated; and the question is whether, upon the facts there presented, the Court was right in holding that the first execution was postponed to the second.

It appears, in substance, that on the day the first execution was issued, Landis, the plaintiff therein, “told the sheriff’s deputy not to go to defendant’s house till next day, as the house was torn up ; ” and on the following morning he informed the sheriff that “ the ladies were cleaning up or fixing things up in the house,” and suggested to the sheriff that, if it made no difference to him, “ he might go up in the afternoon.” It cannot be doubted that what was thus said and suggested by the plaintiff in the execution was prompted by a desire to accommodate the family of the defendant'in the execution, and cannot be fairly construed as evidence of a design on bis part to merely obtain a lien by virtue of his execution and hold the same as security. The authorities are abundant that when the primary design of a plaintiff, in issuing an execution, is to obtain a lien upon defendant’s personal property, and not to sell the same except in the contingency of a subsequent execution being issued, the lien of the execution will be postponed. The facts recited in the case stated, however, do not warrant any such conclusion. On the contrary, they show nothing more than a disposition on the part of plaintiff to treat £he family of defendant in the execution with due consideration, by not subjecting them to unnecessary inconvenience or annoyance. We think, therefore, that the learned Court erred in holding that the lien of the first execution was lost.

The order of Court is reversed, and the rule to show cause why the sheriff should not be ordered to pay the proceeds of sale to plaintiff, Charles I. Landis, is made absolute.