Wise v. Vosburg

Opinion by Rice, P. J., The appellee issued a fi. fa. in the ordinary form, and, on December 28, 1894, by direction of his attorney, the sheriff levied upon the defendant’s partnership interest in a drug store. On January 2, 1895, the appellant issued a fi. fa. in the special form prescribed by the Act of April 8, 1873, P. L. 65, upon which the sheriff indorsed the levy made on the prior writ as follows: “Now December 28, 1894, levy made and same is indorsed on this writ, see schedule attached to fi. fa. No. 41, February term, 1895,” (the appellee’s writ). This brief summary of the facts, which are fully set out in the auditor’s report, is sufficient to show the precise question for our determination. The appellant’s contention is that, although prior in time, the [225] first-mentioned writ acquired no lien upon the defendant’s partnership interest, because it was not in the form prescribed by the act of 1873. The auditor and the court below held that the levy on the special fi. fa. was subject to the levy made on the prior writ, and, upon the authority of Dengler’s Appeal, 125 Pa. 12, awarded the fund to the writ first levied. We do not see how they could have done otherwise. The cases are exactly parallel, as the following concise statement of the present chief justice will show: “In the case at bar, the sheriff, acting under verbal directions, did make an actual levy on the defendant’s interest in the partnership .... at least one day before the appellee’s writ was issued. The levy thus made was good, as against the subsequent special execution and levy, subject to the first levy, and the fund raised by the sale is applicable to appellant’s execution. In any view that can be taken of the sheriff’s returns, whether we regard them as returning the money made out of the sale of defendant’s individual personal property, or out of the sale of his interest in the partnership of which he was then a member, the appellee is not entitled to the fund in controversy.” We need not take time to point out the distinction between this case and Hare v. Commonwealth, 92 Pa. 141, and Kaine’s App., 92 Pa. 273. This was done in Dengler’s Appeal. The decree is affirmed and the appellant is directed to pay the costs.