Shonk v. Dungan

Pennsylvania Court of Common Pleas

Shonk v. Dungan

86 Pa. D. & C. 294, 1953 Pa. Dist. & Cnty. Dec. LEXIS 128

DecidedApril 27, 1953

StatusPublished

This text of 86 Pa. D. & C. 294 (Shonk v. Dungan) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Shonk v. Dungan, 86 Pa. D. & C. 294, 1953 Pa. Dist. & Cnty. Dec. LEXIS 128 (Pa. Super. Ct. 1953).

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Opinion

Flannery, J.,

This is a motion to quash a writ of capias ad satisfaciendum which was executed simultaneously with a writ of fieri facias.

It appearing to the court that where a plaintiff levies a fieri facias upon the estate of defendant and, while this is in force, charges him in execution upon a capias ad satisfaciendum founded on the same judgment, an option is given defendant to set aside the service of one [295]*295or the other of these writs. The ground for this rule is the oppression of defendant by the concurrent exercise on the part of plaintiff of two kinds of judicial process, both tending to the same end. While it is true the writs may issue together they may not be executed together. One may follow or supplement the other but their simultaneous execution is repugnant in the law. 10 Standard Pa. Practice 125; Davies v. Scott, 2 Miles 52; Grant et al. v. Potts et al., 2 Miles 164; Young v. Taylor and Barron, 2 Binney 217.

Wherefore, rule to show cause why the writ of capias ad satisfaciendum should not be quashed is made absolute.

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Flannery, J.,

This is a motion to quash a writ of capias ad satisfaciendum which was executed simultaneously with a writ of fieri facias.

It appearing to the court that where a plaintiff levies a fieri facias upon the estate of defendant and, while this is in force, charges him in execution upon a capias ad satisfaciendum founded on the same judgment, an option is given defendant to set aside the service of one [295]*295or the other of these writs. The ground for this rule is the oppression of defendant by the concurrent exercise on the part of plaintiff of two kinds of judicial process, both tending to the same end. While it is true the writs may issue together they may not be executed together. One may follow or supplement the other but their simultaneous execution is repugnant in the law. 10 Standard Pa. Practice 125; Davies v. Scott, 2 Miles 52; Grant et al. v. Potts et al., 2 Miles 164; Young v. Taylor and Barron, 2 Binney 217.

Wherefore, rule to show cause why the writ of capias ad satisfaciendum should not be quashed is made absolute.

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Bluebook (online)

86 Pa. D. & C. 294, 1953 Pa. Dist. & Cnty. Dec. LEXIS 128, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shonk-v-dungan-pactcompl-1953.

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