Miller v. Getz

19 A. 955, 135 Pa. 558, 1890 Pa. LEXIS 1219

• Court: Supreme Court of Pennsylvania
• Decided: June 2, 1890
• Docket: No. 293
• Status: Published

Opinion

Per Curiam: :

The law is well settled that an execution issued for the purpose of obtaining a lien, and not to sell the goods, will be postponed to a subsequent fieri facias, under which the officer having the writ in charge proceeds to levy and sell: Corlies v. Stanbridge, 5 R. 286 : Mentz v. Hamman, 5 Wh. 150; Dorrance v. Commonwealth, 13 Pa. 160; Freeburger’s App., 40 Pa. 244; Stern’s App., 64 Pa. 447; Landis v. Evans, 113 Pa. 332. There was nothing in this case to show that the execution of Reuben A. Leinbach was not issued in entire good faith, for the purpose of making the monejn The constable made a levy thereunder, and upon the same day, but a few hours later, a levy was made by the sheriff, upon the same property, upon another execution. Thereupon the constable handed over his levy to the sheriff, at the same time claiming his rights as an officer to the goods, and allowed the sheriff to sell. The sheriff returned his writ subject to the constable’s levy; and the proceeds of the sale, $285.74, were distributed by the court below to the plaintiff in the execution in the hands of the constable. We see no error in this. It is true the auditor found that the constable abandoned his levy. This, however, is a mere deduction from evidence which does not justify it, and the court was clearly right in not regarding it. It was contended, however, that the money should have been awarded to the Miller judgment, because it contained a waiver of exemption, while none is found in the Leinbach judgment. This position cannot be sustained. It is settled that a waiver as to any lien will inure to the benefit of all prior liens, on the principle that a debtor cannot alter the precedence settled by law: Hallman v. Hallman, 124 Pa. 347.

The decree is affirmed, and the appeal dismissed at the costs of the appellant.