Batdorff v. Focht & Brother

44 Pa. 195, 1863 Pa. LEXIS 38

• Court: Supreme Court of Pennsylvania
• Decided: February 2, 1863
• Status: Published

Opinion

The opinion of the court was delivered, by

Woodward, J.

The plaintiff acquired a lien upon the defendants’ goods by docketing his testatum fieri facias in the Common Pleas of Schuylkill county, and the question is, whether it lost its priority over subsequent executions by reason of the judicial order of 6th July 1861, staying the testatum until the rule to show cause, obtained the day before, should be disposed of. We think it did not. It is a general principle that interlocutory orders shall not impair vested liens. It is usual to accompany such orders with a stipulation that the lien of the writ which is the subject of the order shall remain until the motion has been disposed of in final hearing; and this is a prudent and proper practice. But where, as in this case, it is omitted, the lien must nevertheless be regarded as preserved, for it is one of the vested legal rights of the plaintiff, and can no more be sacrificed by an edict of the court, without a hearing, than any of his other civil rights, whether of liberty or property.

Counsel argue that a friendly creditor might cloak a debtor’s property, and keep other creditors at bay by taking the first execution, and then assenting to rules and dilatory motions in respect to it, as indeed the plaintiff in this instance is alleged to have done. But the argument is obliged to assume the willingness of the court to permit itself to be used for such a fraudulent purpose — an assumption which is inadmissible. All well-regulated. courts clear off their argument list frequently, and do not permit dilatory rules and motions to encumber their records indefinitely. They require a good reason for continuing that which ought to be disposed of speedily. The order in this case stood from July to September, when the goods were sold — a delay that was not unreasonable, considering that it was the annual season of inaction in city courts. ' Indeed, unreasonable delay in such matters is impossible under the rules of practice that prevail in the District Court.

The decree of distribution is affirmed.