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ALLEGHENY COUNTY v. VIRGIN (ET AL. (05/21/51)

May 21, 1951

ALLEGHENY COUNTY
v.
VIRGIN (ET AL., APPELLANT)



Appeal, No. 226, March T., 1950, from order of Court of Common Pleas of Allegheny County, Oct. T., 1949, No. 674, in case of County of Allegheny et al. v. W. H. Virgin, trading as Wilkinsburg Construction Company, et al. Record remanded.

COUNSEL

Frank F. Troup, with him John R. O'Keefe, for appellant.

Frank Reich and J. Leonard Smith, Jr., with them Elder W. Marshall, John W. Wishart and Reed, Smith, Shaw & McClay, for appellees.

Before Drew, C.j., Stern, Jones, Bell, Ladner and Chidsey, JJ.

Author: Ladner

[ 367 Pa. Page 390]

OPINION BY MR. JUSTICE LADNER

In form the appeal before us is from the order of the court below refusing a claimant's petition to intervene in an attachment proceeding. Intervention was asked by the appellant so that he might have adjudicated the validity of an alleged prior assignment of the funds and shares of stock attached. Yet our ruling on his right to intervene would not settle the real controversy between the parties nor anything of importance. This because of the confused state of the record which presents a multitude of petitions and rules, some disposed of, others pending, but all adding to the confusion.

The appellee, Hunter, is the use-plaintiff and assignee of a judgment against the defendant, Virgin. On July 20, he issued an attachment execution attaching the goods, chattels, rights and credits, etc. in the hands of one Christopher and the William Penn Memorial Cemetery Company, garnishees. On August 4, 1949, interrogatories were filed. On August 9, 1949, the defendant petitioned for a rule under Pa. R.C.P. 2304, to show cause why the plaintiff, the attaching creditor, and one John F. Gloeckner (here the appellant, claiming the attached property by virtue of a prior assignment) should not interplead. This rule was granted on that same day with a stay of all proceedings. On August 12th, service of the notice of the rule

[ 367 Pa. Page 391]

    to interplead was accepted by the attorney for Hunter, the attaching creditor, and by the attorneys for the garnishees and answers contesting the right to an interpleader were filed by both on August 31, 1949.

It is stated in the opinion of the learned court below, filed in support of the order refusing intervention, that the rule for an interpleader was discharged by an order entered in November of 1949. However, we find no such order in the original record certified to this Court. Nor do we find any notation of the same in the copy of the docket entries annexed to the original record.There may be some omission, inadvertence or error in this regard but the record certified to this court shows the stay of proceedings granted on the rule to interplead is still in effect.

On December 12, 1949, the garnishees filed answers to the interrogatories. Pursuant to admissions in the answers judgment was entered on December 21, 1949, in favor of the execution creditor, Hunter, against the garnishee Christopher, individually and as trustee and executor of the estate of Charles W. Christopher in the sum of $9,473.65, and for certain other credits admitted to be in his hands insofar as necessary to satisfy the debt, interest and costs. We may here interpolate that if the rule to interplead with its stay of proceedings has in fact never been discharged the judgment thus entered in obviously irregular.

The next day, December 22, 1949, a rule, also with a stay of proceedings, was granted sur petition of the claimant Gloeckner on the execution creditor to show cause why Gloeckner should not be permitted to intervene in the proceedings. Before this rule was disposed of, viz., December 30, 1949, two more rules were granted on petitioner of the claimant, one to strike off and one to open the judgment entered against the ...


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