Summary
concluding that execution of property based upon a judgment of confession on a bond was properly stayed where an action in equity remained pending and involved the same parties and same general subject matter
Summary of this case from Pier 3 Condo. Ass'n v. KhalilOpinion
November 16, 1955.
November 28, 1955.
Appeals — Review — Appealable order — Indefinite stay of execution.
1. An indefinite stay of execution is a final and appealable order. [238]
Practice — Judgments — Staying proceedings — Litigation in different courts.
2. Where the plaintiffs instituted an action in equity in one county and subsequently entered judgment by confession against defendant in a second county and it appeared that the judgment was merely security for the payment of whatever was owing by defendant to plaintiffs, it was Held, in the circumstances, that whether there should be a stay of proceedings upon the judgment could best be determined by the court in which the equity action was pending and that the court in which the judgment had been entered had improperly granted an indefinite stay of execution. [237-8]
Argued November 16, 1955. Before STERN, C. J., STEARNE, JONES, BELL, MUSMANNO and ARNOLD, JJ.
Appeal, No. 228, Jan. T., 1955, from order of Court of Common Pleas of Perry County, Aug. T., 1954, No. 148, in case of Lillian T. Foster and Howard Foster, trading as Howard Manufacturing Company v. Louis Rubenstein, trading as Minette Manufacturing Company. Order reversed.
Proceeding upon petition to open judgment entered by confession and to stay execution.
Order entered directing that rule to show cause why judgment should not be opened be continued indefinitely and staying proceedings, opinion by CRYTZER, P. J. Plaintiffs appealed.
M. Wolf, with him Earl V. Compton, Franklin H. Spitzer, Jr., Wolf, Block, Schorr Solis-Cohen and Compton, Handler Berman, for appellants.
William Fearen, with him Herbert O. Schaeffer, for appellee.
Plaintiffs instituted in the Court of Common Pleas of Dauphin County in August, 1953, proceedings in equity to enjoin defendant from engaging in certain business activities; defendant requested an accounting and such proceedings are now pending. In October, 1954, plaintiffs entered judgment by confession on a bond accompanying a mortgage on defendant's property in Perry County. Defendant obtained a rule to show cause why the judgment should not be opened and execution thereon stayed until the final determination of the proceedings in Dauphin County. The Court of Common Pleas of Perry County continued the rule and stayed all proceedings pending final decision of the Dauphin County Court. Plaintiffs appeal from that order.
Defendant has moved to quash the appeal on the ground that it is interlocutory. The motion is overruled because an indefinite stay of execution is final and appealable: Stofflett v. Kress, 342 Pa. 332, 334, 335, 21 A.2d 31, 32; Marko v. Mendelowski, 344 Pa. 665, 668, 25 A.2d 692, 693, 694; Lietka v. Hambersky, 167 Pa. Super. 304, 306, 307, 74 A.2d 698, 699.
As to the merits of the appeal, the question is not whether the Court of Common Pleas of Perry County had jurisdiction to make the order now appealed from; it undoubtedly had such jurisdiction. The real question is whether the order was proper under the circumstances. Whether realization on the lien on the property in Perry County should be stayed pending the conclusion of the equity proceedings in Dauphin County — or until any particular stage thereof — can best be determined by the Dauphin County Court which has full control of the major controversy between the parties, the judgment being merely security for the payment of whatever may be owing by defendant to plaintiffs. Pending the proceedings before it, that Court has, of course, jurisdiction to enjoin plaintiffs from proceeding on the judgment in Perry County to whatever extent it may deem necessary or desirable.
We therefore make the following
ORDER
The order of the Court below is reversed, without prejudice to the right of defendant to petition the Court of Common Pleas of Dauphin County to enjoin plaintiffs from execution on the judgment entered in Perry County until such time as the said Court may direct.