Bole v. Bogardis

86 Pa. 37, 1878 Pa. LEXIS 5

• Court: Supreme Court of Pennsylvania
• Decided: January 7, 1878
• Status: Published

Opinion

Mr. Justice Sterrett

delivered the opinion of the court,

The payment of interest in advance to the 3d day of February 1876, ipso facto, extended the payment of the judgment until that date. The second pluries fi. fa. was therefore prematurely issued on the 10th of January, and the court was clearly right in granting the rule to show cause why it should not be set aside at the costs of the plaintiff. The writ was returned, by order of court, on the 10th of April, and on the 18th December following the rule was made absolute, and the plaintiff thereby fixed for the costs. In the meantime, however, there was no order staying proceedings on the judgment. It became ripe for execution at the expiration of the time to which the interest had been paid. On the 11th of October 1876, the third pluries fi. fa. tvas issued and returned by order of plaintiff ’s' attorney on the 13th of November, with levy on real estate. It is true the original return of the sheriff was different; but it was erroneous, and, by leave of court, was amended so as to conform to the facts. Then, on the 19th day of December, the day after the cost of the former execution was imposed on the plaintiff, the venditioni exponas, with fi. fa. attached, was issued to the next term. In January 1877, the court set aside the third pluries fi. fa. and then the vend, ex., both at the cost of the plaintiff. It is claimed that this was error.

The only ground upon which the court appears to have proceeded in making these orders, was that the third pluries fi. fa. had been issued pending the rule to s'et aside the former writ at the plaintiff ’s cost. As we have seen, that execution had been returned by order of court. This practically disposed of the writ, and all that remained to be determined was the question of costs, and this was rightly disposed of before the vend. ex. issued. The pendency of the first rule, as to costs merely, did not operate as a stay of proceedings on the judgment after it became ripe for execution; and while the plaintiff had no right to collect these costs, he could have been restrained from doing so, if necessary, without making the orders now complained of. Indeed, there is nothing to show that he was attempting to collect more than he was entitled to when his executions were stricken down. In contemplation of law the vend, ex. was issued by the court itself, or by its permission, and we cannot presume that the costs of the former writ, which had been imposed on the plaintiff the day before, were taxed against the defendant. He was not prejudiced or likely to be injured by anything that was done after the prematurely issued writ was returned by order of the court. We think the learned judge erred in setting aside the writs.

The orders of court setting aside the third pluries fi. fa. and venditioni exponas, at the cost of the plaintiff, are therefore reversed and set aside, and the record remitted.