Loeffler v. Schmertz

Supreme Court of Pennsylvania

Loeffler v. Schmertz

25 A. 636, 152 Pa. 615, 1893 Pa. LEXIS 1027

CourtSupreme Court of Pennsylvania

DecidedJanuary 3, 1893

DocketAppeal, No. 3

StatusPublished

This text of 25 A. 636 (Loeffler v. Schmertz) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Loeffler v. Schmertz, 25 A. 636, 152 Pa. 615, 1893 Pa. LEXIS 1027 (Pa. 1893).

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Opinion

Opinion by

Mr. Chief Justice Paxson,

The first specification alleges that the court below erred in [620]*620refusing an issue as prayed for in appellant’s petition. The •appellant relies on the act of April 20, 1846, P. L. 411. That portion of it, which affects this case, is as follows: “ Provided, that before an issue shall be directed upon the distribution of money arising from sales under execution, or orphans’ court sales, the applicants for such issue shall make affidavit that there are material facts of dispute therein, and shall set forth the nature and character thereof; upon which affidavit the ■court shall determine whether such issue shall be granted, subject to a writ of error or appeal by such applicant, if the issue be refused, in like manner as in other cases in which such suit now lies.”

Under this act it is plain that it is the duty of the court below to determine whether the facts in dispute are material, and are sufficiently set forth, and if they are not so, to refuse the issue.

If the facts on which this issue were demanded are correctly set forth in the affidavits they would certainly indicate fraud ■on the part of Schmertz. But conceding that he is a rogue and that his purchases of goods were made with intent to cheat his creditors, it is necessary to connect the plaintiff, Loeffler, with the fraud, before he can be affected. This has not been made to appear. It is not denied that he was a creditor of ■Schmertz, and the only ground on which the judgment held by him was seriously attacked is that it was given for a larger amount than was necessary to cover the liabilities of Loeffler for Schmertz. The learned judge below finds that at the time the judgment of $100,000 was given, June 13, 1891, the claims and liabilities of said Loeffler for said Schmertz amounted to $101,616.66. It is not needed that we should go into the items of which this sum was composed, as the learned judge below has given sufficient reasons for' his refusal to award an issue.

Judgment affirmed.

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Opinion by

Mr. Chief Justice Paxson,

The first specification alleges that the court below erred in [620]*620refusing an issue as prayed for in appellant’s petition. The •appellant relies on the act of April 20, 1846, P. L. 411. That portion of it, which affects this case, is as follows: “ Provided, that before an issue shall be directed upon the distribution of money arising from sales under execution, or orphans’ court sales, the applicants for such issue shall make affidavit that there are material facts of dispute therein, and shall set forth the nature and character thereof; upon which affidavit the ■court shall determine whether such issue shall be granted, subject to a writ of error or appeal by such applicant, if the issue be refused, in like manner as in other cases in which such suit now lies.”

Under this act it is plain that it is the duty of the court below to determine whether the facts in dispute are material, and are sufficiently set forth, and if they are not so, to refuse the issue.

If the facts on which this issue were demanded are correctly set forth in the affidavits they would certainly indicate fraud ■on the part of Schmertz. But conceding that he is a rogue and that his purchases of goods were made with intent to cheat his creditors, it is necessary to connect the plaintiff, Loeffler, with the fraud, before he can be affected. This has not been made to appear. It is not denied that he was a creditor of ■Schmertz, and the only ground on which the judgment held by him was seriously attacked is that it was given for a larger amount than was necessary to cover the liabilities of Loeffler for Schmertz. The learned judge below finds that at the time the judgment of $100,000 was given, June 13, 1891, the claims and liabilities of said Loeffler for said Schmertz amounted to $101,616.66. It is not needed that we should go into the items of which this sum was composed, as the learned judge below has given sufficient reasons for' his refusal to award an issue.

Judgment affirmed.

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Bluebook (online)

25 A. 636, 152 Pa. 615, 1893 Pa. LEXIS 1027, Counsel Stack Legal Research, https://law.counselstack.com/opinion/loeffler-v-schmertz-pa-1893.