Schwartz, Mansbach & Co. v. Gabler

Opinion by Orlady, J., A judgment was entered against the defendant in favor of [230] H. B. Cock, on which an execution was issued and delivered to the sheriff by the attorney of the plaintiff with the instruction, as found by the auditor, “ You needn’t go down today for that writ, as I am going down and will tell you when I come back in the morning what to do in the matter.” On the following day Schwartz, Mansbach & Co. issued an execution against the defendant, and instructed the sheriff to proceed at once to levy upon and to sell the defendant’s property. It appears from the report of the auditor that the defendant’s home was some miles' distant from the sheriff’s office; that when the first execution was issued, his wife was ill and by testimony which is convincing the auditor finds as a fact that the only object of Cock’s attorney was the humane one to advise the defendant of the issuance of the execution so as to prepare the family for the visit of the sheriff and thus avoid a shock to the invalid wife; that the conduct of the plaintiff and-his attorney was in good faith and was not for the mere purpose of securing a lien. An examination of the evidence shows clearly that there was nothing more than a disposition on the part of the plaintiff to treat the family of the defendant with due consideration, by not subjecting them to unnecessary inconvenience or annoyance, and that there was an entire absence of fraudulent or illegal intent, as in Landis v. Evans, 113 Pa. 332; Broadhead v. Cornman, 171 Pa. 322. The return of the sheriff to the writs embraced much that was improper and the only effect of inserting them has been to cause needless delay and expense. The facts stated therein were properly admissible in evidence before the auditor, but they gain no additional weight by reason of being incorporated in the sheriff’s return. The agreement between the rival creditors ' as found by the auditor was one which was properly enforced in making the distribution of the proceeds of the sheriff’s sale, and the conclusions of fact are amply supported by the evidence. The judgment is affirmed.