Smyth v. Levy

Opinion by Porter, J., This appeal is taken from an order making absolute a rule to set aside the levy made under the fieri facias issued in the cause. The judgment as appears by the record, was properly entered. The fieri facias was regularly issued and delivered to the sheriff, in whose hands were funds arising from the sale of the defendant’s property under executions issued on confessed judgments. It cannot be doubted that under the authority of Sullivan v. Tinker, 140 Pa. 35, the fieri facias bound the fund in the sheriff’s hands. In that case it is said: “It is true the appellee’s judgment was not obtained until after the sale of the personal property by the sheriff, but we are of opinion that the fieri facias issued upon the appellee’s judgment bound the fund in the sheriff’s hands. It Avas the money of the defendants in the execution. . . . Money of a defendant not on his person may be seized and taken in execution.” It is asserted that the fund in the hands of the sheriff will not pay the preceding executions in full. If this be so, they will take by their priority whatever fund there may be. The leAry of the fieri facias in this cause however, gives the plaintiff a standing to attack the bona fides and validity of the preceding judgments upon which the fund Avas raised. If this attack be successfully made, all the funds in the sheriff’s hands will be the funds of the defendant, subject to the fieri facias of the present appellants. We are of opinion, therefore, that the levy of the writ should not have been set aside. The order Avas made by the court below apparently on the application of two strangers to the record, who appeared by petition and who alleged that they held judgments prior to the judgment in the present cause. What rights these strangers to [26] the record had in this cause it is difficult to see. They were neither plaintiffs nor defendants. “No man can make himself a party to pending litigation between others by his own act or statement on the record:” Phila. to use v. Jenkins, 162 Pa. 451, Williams, J. The petitioners have no standing in the present cause. Their rights are limited to the causes in which they are parties litigant, or they may proceed against the sheriff to compel him either to distribute the money under the executions which they claim to control, or to pay the money into court where the rights of the several execution creditors in the fund can be determined. The order of the court below is, therefore, reversed, and the order striking off the levy set aside.