Dahl v. Auberle , 1897 Pa. Super. LEXIS 178 ( 1897 )

Opinion by

Beaver, J.,

When the appellant intervened as defendant in the suit brought by John Bower in his lifetime against the constable who had disregarded his claim for the statutory exemption of $300 from distress under a landlord’s warrant issued by her, she made herself responsible for the trespass which the jury subsequently found had been committed against the rights of Bower. Prior to the time of her intervention, an award of arbitrators had been filed in the suit against Lauderback, the constable, the greater part of which was included in the inventory of goods and chattels claimed by and set apart for the use of the widow under the provisions of the act of the 14th of April, 1851 (P. L. 612), which inventory and appraisement were confirmed absolutely by the court October 8, 1895. On the 19th of May, 1896, a verdict was rendered in said suit in favor of the plaintiff and against the defendants for $325.17, upon which on the 15th of June, 1896, judgment was entered, and which on the same day was assigned by the administrator of Bower to John F. Edmundson. When, therefore, the appellant on the 17th of October, 1896, presented her petition, praying to be allowed to set off her judgment against the estate of John Bower, obtained upon the 24th of April, 1896, against the judgment which had been obtained against her in trespass, no part of it belonged to Bower’s estate; $281.25 thereof was the absolute property of the widow set apart to her under the decree of the court of the 8th of October, 1895, of which the appellant had at least constructive notice, and the balance belonged to Edmundson by assignment; it being admitted by him that he took said assignment subject to the widow’s rights. It is not claimed, as we understand it, that there was any legal right of set-off on the part of the appellant. It is plainly apparent that no such claim could have been successfully made in the trial of the action of trespass. The appellant’s legal rights were no greater after she had obtained her judgment in assumpsit against Bower’s estate than before. The entire claim, therefore, is one of equitable set-off and is addressed to the equity side of the court. Independently of the fact that there was nothing at the time. the application was made which could be made the subject of the set-off prayed for, was the appellant in a situation to claim the intervention of equity in her behalf ? The verdict of the jury in the action of trespass established the fact that she had wrongfully sold the personal property of Bower in his lifetime. She had thereby taken away what could have been claimed by. the widow under her statutory right to $800 under the act of 14th of April, 1851, supra. All that remained for the widow was the verdict which the jury had rendered as a poor equivalent for the property so taken. It is apparent from this consideration as well as from the other facts in the case, that the appellant had no standing in equity upon which to base her application for set-off. The assignment to the attorney was based upon a good consideration and, ■being held subject to the rights of the widow, is not unreasonable. The court below was therefore entirely justified in saying that “ neither law nor equity will justify the court in ordering the set-off of judgment prayed for.”

The assignments of error, both of which relate to the decree of the court refusing the prayer of the petitioner to be allowed to set off her judgment, are overruled, the decree is affirmed and the' appeal dismissed at the costs of the appellant.