Hare v. Commonwealth , 1879 Pa. LEXIS 394 ( 1879 )

Mr. Justice Paxson

delivered' the opinion of the court, November 28th 1879.

The Act of 8th April 1873, Pamph. L. 65, Purd. Dig. 1813, provides a special form of proceeding where it is sought to levy upon and sell the interest of a partner in the firm of which he is a member. Without entering into all the details of said act, it contains two features that are essentially different from the practice existing at the time of its passage. 1st. The judgment must be entered in the county where the chief office or place of business of the said partnership is or was last located; or if not entered in such county, then a testatum writ of fieri facias may issue upon such judgment, as in case of a fieri facias; and 2d, The fieri facias is required to be a special writ, “ which shall command the sheriff or other officer to levy the sum of said judgment, with interest and costs of suit, upon the interest of defendant or defendants in said writ, of any personal, mixed or real property, rights, claims and credits in such partnership, and thereupon proceed and sell the same,” &c. In most, if not in all other respects, the act is merely declaratory ; it being well settled, that prior to its passage, the interest of a. partner in a firm could be sold upon a fieri facias, issued upon a judgment recovered against him for his individual debt: Deal v. Bogue, 8 Harris 228; Vandike v. Rosskam, 17 P. F. Smith 330. But the provision requiring the sale to take place in the county where the chief place of business of the firm is located, is important, and cannot fail to prove beneficial. Prior to the act, the interest of a partner residing in Pittsburgh, in a firm located and doing business in the city of Philadelphia, could be sold by the sheriff of Allegheny county upon a writ of fieri facias, without notice to, or the knowledge of the firm. This was a serious evil, and liable to entail loss and inconvenience upon firms so situated. The Act of 1873 was evidently intended to remedy this defect, and it has certainly done so to a very great extent.

The legislature having provided a particular mode of procedure in such cases, it must be followed. The Act of 21st March 1806, Purd. 58, 4 Sm. Laws 332, provides that, “ In all cases where a remedy is provided, or duty enjoined, or anything directed to be done by any Act or Acts of Assembly of this Commonwealth, the directions of the said act shall be strictly pursued ; and no penalty shall be inflicted, or anything done agreeably to the provisions of the common law in such cases, further than shall be necessary for carrying such act or acts into effect.” This act was formerly held to extend only to penal actions and indictable offences: Rees v. Emerick, 6 S. & R. 286. But later decisions have extended it both to civil and criminal proceedings : Wike v. Lightner, 1 Rawle 289. In Suydam v. North-Western Insurance Co., 1 P. F. Smith 394, it was said: “ These acts having thus provided a remedy and devised a system by which the rights and credits of a corporation, the debts due it, deposits belonging to it, all that is applicable to the payment of its debts, may be reached at the suit of a judgment-creditor, the mode pointed out is, by force of the Act of 1806, exclusive of all others.” We might multiply authorities, but it is not needed. The principle is well settled.

The first execution issued in this case, No. 55 of September term 1875, was an ordinary writ of fieri facias. It contained no command to the sheriff to levy upon the interest of John L. Lloyd, defendant therein, in the firms of De Huff & Co., and the iEtna and Sharpsburg Savings Bank ; nor was the sheriff or the plaintiffs in the execution aware that Lloyd was the owner of any such interests. Subsequently, and while this writ was in the hands of the sheriff in full force and unexecuted, the execution No. 88 October term, came into his hands. This was a special writ of fieri facias under the Act of 1873, commanding the sheriff to levy upon the interest of Lloyd in the partnerships referred to. The sheriff obeyed the command of the writ and made the levy, and the proceeds of the sale thereunder were afterwards awarded to the second execution, the one upon which the levy had been made.

The precise question for our determination under the case stated is, whether it was the, duty of the sheriff, when informed by the special levy contained in execution No. 88 October term 1875, of the interest of Lloyd in the firms referred to, to have levied upon said interest under the prior execution, No. 55 September term 1875; and if so, whether such a levy upon such prior writ, would have entitled the latter to priority of distribution.

Each of these propositions must be answered in the negative. Since the passage of the Act of 1873, the mode therein prescribed must be pursued. As writ No. 55 September term 1875 did not conform* to the act, the sheriff was under no duty to levy upon the partnership interests under it; and if he had done so, upon distribution it would have been postponed to the later writ.

It has been suggested, that if a-new writ was intended by the Act of 1873, this court should have established one under the third section of the Act of 16th June 1836, and that in the absence of such writ the old form could be used.

We do not regard this as a case for devising a new writ under the act referred to. A new writ is not needed. A fieri facias is the proper writ; and all that is required, is to alter it so as to conform to the Act of 1873. The proper practice is, to direct the prothonotary by the precipe, to issue a fieri facias commanding the sheriff to levjr upon the interest of the defendant in the particular partnership, as set forth in the act. The Act of Assembly has sufficiently designated the form of the writ.

The judgment is reversed, and judgment is now entered for the defendant upon the case stated.