Kelly v. Herb

27 A. 559, 157 Pa. 41, 1893 Pa. LEXIS 1397

• Court: Supreme Court of Pennsylvania
• Decided: October 2, 1893
• Docket: Appeal, No. 318
• Status: Published

Opinion

Opinion by

Mr. Justice McCollum,

As we view this case, it is unnecessary to consider separately the several allegations of the bill or to inquire whether they are sufficiently denied by the answers. As the case now stands the material question for us to determine is whether the court below erred in awarding and continuing “ a preliminary injunction restraining Wm. F. Greenoff from receiving and Elias Baker, sheriff, from paying out any money realized on the execution of W. F. Greenoff against Herb & Greenoff to No. 8, September term, 1891.” This execution was issued upon a judgment which the complainants allege was collusive and fraudulent as to creditors of the defendants therein. They also allege that they are such creditors. But it is manifest that when they filed their bill they had no lien upon the property sold on the execution, or on the fund produced by the sale, and that they had not reduced their claim to judgment. They were not, therefore, in a position to ask for the injunction. We think the case is ruled against them by Artman-Treichler Co. v. Giles, 155 Pa. 409.

Decree reversed and injunction dissolved at the costs of the appellees.