McCrea v. Nonweiler , 58 F. Supp. 81 ( 1944 )

SCHOONMAKER, District Judge.

This case now comes before the court on petition of defendant Nonweiler for leave to pay the judgment in this case against him, and to have the judgment assigned to him, or marked to his use.

On August 5, 1943, we declined to pass on this petition, because the record in this case was in the Circuit Court of Appeals. See our opinion filed that day. 58 F.Supp. 80.

The defendant Nonweiler then presented his petition for the same relief to the Circuit Court of Appeals. That court then remanded the record to this court for such action as this court might .see fit to make with respect to said petition.' The petition then came on for hearing before this court on January 7/1944.

On due consideration thereof, we are of the opinion that defendant Nonweiler is entitled to pay this judgment, and then have it marked to his use so as to enable him to enforce contribution from John McCrea, if and when, by appropriate proceedings, he should be found guilty of a joint wrong against the plaintiff in this case. See Trerotola v. Philadelphia, 346 Pa. 222, 29 A.2d 788; Bailey v. C. Lewis Lavine, Inc., 302 Pa. 273, 277, 153 A. 422; Goldman v. Mitchell-Fletcher Co., 292 Pa. 354, 141 A. 231; Felo v. Kroger Grocery & Baking Co., 347 Pa. 142, 31 A.2d 552.

We may further note that, if and when, the defendant Nonweiler pays the judgment in suit to W. H. McCrea, Jr., the plaintiff, it would be an acknowledgment of his liability to W. H. McCrea, Jr., and that no recompense of the amount so paid, or any part thereof, could be recovered from said W. H. McCrea, Jr., whatever the eventuality might be with reference to the proceedings now pending in the Circuit Court of Appeals.¹

In open court at the .argument of defendant Nonweiler’s petition, his counsel acknowledged this was so, and agreed that the order for payment might so stipulate.

An order may be submitted in accordance with this opinion.

1 For decision, see 146 F.2d 109.