Commonwealth v. Smith

Decided May 10, 1886

Supreme Court of Pennsylvania · decided 1886-05-10

Appeal taken from a justice’s judgment supersedes an execution already issued upon it, even though a levy has been made, and leaves the sheriff at liberty to sell the property and make distribution among junior executions. Should it appear that such appeal was taken fraudulently and in order to give the junior creditors a preference, the debtor taking it is answerable therefor, and not the sheriff and' his sureties. Note. — -Eor right to prefer creditors see notes to Nusbaum v. Louehheim Bros. 1 Sad. Hep. 106, and Covanovan’s Appeal, ante, 79. The appeal from the judgment of the justice destroys the lien of the levy on goods made by virtue of execution on the judgment (Cope’s Appeal, 39 Pa. 284), provided the appeal is taken in time (Dailey v. Mayer, 2 Legal Gaz. 223). A sale by the constable after notice of the appeal passes no title. O’Donnell v. Mullin, 27 Pa. 199, 67 Am. Dec. 458. But the rule is otherwise where no notice has been given and the appeal, though taken, was not perfected. Kramer v. Wellendorf, 129 Pa. 547, 18 Atl. 525.

Affirmed · Decided 1886-05-10

Per Curiam:

¶1The appeals of R. P. Sloan & Company from the judgments of the justice of the peace, by force of which the plaintiffs in this case claim to have and maintain their action against the defendant and his bail, superseded the executions issued on those judgments; hence they were not in the way of the distribution, made by the sheriff, of the money raised by the writs which were placed in his hands.

¶2If in the aforesaid appeals there was actual fraud by which Alexander Sloan profited to the injury of the plaintiffs, he is the one to answer for it, and not the sheriff and his bail.

¶3The judgment of .the court below is affirmed.