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SHERMAN v. BUFFINGTON TOWNSHIP FARMS. (11/11/57)

November 11, 1957

SHERMAN, APPELLANT,
v.
BUFFINGTON TOWNSHIP FARMS.



Appeal, No. 54, March T., 1957, from judgment of Court of Common Pleas of Indiana County, March T., 1956, No. 333, in case of Harry Alan Sherman et ux. v. Buffington Township Farms, Inc. Appeal dismissed.

COUNSEL

Harry Alan Sherman, in propria persona, for appellants.

John S. Simpson, with him A. G. Helbling, Merle A. Wolfson, John G. Patterson, II and Fisher, Ruddock & Simpson, for appellee, intervenor.

Before Jones, C.j., Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.

Author: Jones

[ 390 Pa. Page 455]

OPINION BY MR. CHIEF JUSTICE JONES

The appellants, Harry Alan Sherman and Ruth Frances Sherman, his wife, as plaintiffs, on February 2, 1956, caused a judgment to be confessed in the Court of Common Pleas of Indiana County against the defendant, Buffington Township Farms, Inc., upon a bond of the defendant secured by a mortgage of certain realty. The same day the plaintiffs issued on the judgment a writ of fieri facias by virtue whereof the

[ 390 Pa. Page 456]

    sheriff levied upon and seized the mortgaged real estate according to descriptions attached to the writ. On March 5th following, the plaintiffs issued a writ of venditioni exponas which directed the sheriff to expose to public sale the real estate so levied upon.

On May 7, 1956, Edward P. Gagnon petitioned the court, under the Act of July 9, 1897, P.L. 237, 12 PS ยง 911, for a rule on the plaintiffs to show cause why the execution should not be stayed pending inquiry into the validity and possible setting aside of the judgment as invalid and fraudulent. The plaintiffs answered Gagnon's petition, on the merits, denying in the main that the petitioner had reasonable basis for belief that either the judgment or execution proceedings thereon were invalid or fraudulent and averring further that the petitioner could not support any such belief by proofs. Wherefore, the plaintiffs moved the court to dismiss the petition.

After argument by counsel on the pleadings, the court, on August 30, 1956, entered the following order: "The petition in this case is dismissed, however, any execution issued on this judgment is stayed pending a final decision in regard to the action at No. 1 March Term, 1954 (Equity) or until further order of court." That is the order which the plaintiffs have presently appealed.

The portion of the order that relates to the matter then coram judice is that "The petition in this case is dismissed" which definitively put an end to Gagnon's effort under the Act of 1897, supra, to question the validity of the plaintiffs' judgment. What the court thus ordered is exactly what the plaintiffs sought by their answer. They are not, therefore, parties aggrieved with standing to appeal with respect to the dismissal of ...


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