DocketNumber: Appeal, No. 54
Citation Numbers: 57 Pa. Super. 562
Judges: Head, Henderson, Kephart, Orlady, Porter, Rice, Trexler
Filed Date: 7/15/1914
Status: Precedential
Modified Date: 2/18/2022
Opinion by
This is an action upon a bond given upon an appeal to this court in the case of Maurice Joy v. Frank Amantea, the bond being signed by said defendant with Saverio Amantea as surety, the condition of the bond-being that the appellant should prosecute his appeal with effect and pay all costs and damages awarded by
The defense which the appellant attempted to assert in his affidavit was as follows: “The defendant avers that Maurice Joy, the plaintiff, issued an execution upon the aforesaid judgment at D. S. B. No. 98, Third Term, 1909, and that upon the issuance of said writ of pluries fi. fa. No. 66, Third Term, 1911, various parcels of real estate belonging to Frank Amantea, the defendant in the judgment .... were sold by the sheriff as follows, viz.: On Monday, July 3, 1911, the sheriff sold the first described piece of property in the writ, to the plaintiff, Maurice Joy, for the sum of $2,100, and on Saturday, July 8, 1911, the sheriff sold the second described piece of property in the writ to Maurice Joy, the plaintiff, for the sum of $700, and on the same day sold the third described piece of property to Raphael Amantea, for the sum of $200, and the same day Maurice Joy, the
The allegation of the affidavit that the amount bid for said properties would have fully satisfied the judgment of the plaintiff, Maurice Joy, against Frank Amantea involves mixed questions of law and fact. What claims were liens upon the real estate of Frank Amantea and what was the order in which they were entitled to priority of payment? Were these claims ordinary judgments which would take priority as of the date of their entry? Were there included in these claims any mechanics’ liens or municipal claims, which might be entitled to priority in payment over judgments which were entered prior to the date of the filing of the claims? This assertion of the affidavit was, therefore, the mere assertion by this defendant of his own conclusion of law. Conclusions of law are for the court, and if a defendant desires that they should be drawn in his favor he should put the court in possession of the facts from which they are to be drawn: Chain v. Hart, 140 Pa. 374; Kaufmann v. Cooper Iron Mining Co., 105 Pa. 537; Moore v. Susquehanna, etc., Fire Insurance Co., 196 Pa. 30; Andrews v. Blue Ridge Packing Co., 206 Pa. 370; King v. The Security Co., 241 Pa. 547. The defendant, ■ in order to
The judgment is affirmed.