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SWOPE v. TURNER (09/16/60)

September 16, 1960

SWOPE
v.
TURNER, APPELLANT.



Appeal, No. 460, Oct. T., 1959, from judgment of Court of Common Pleas of Lebanon County, Dec. T., 1958, No. 104, in case of Rufus A. Swope et ux., assignees v. Clinton D. Turner et al. Judgment affirmed.

COUNSEL

G. Clinton Fogwell, with him Reilly & Fogwell, for appellant.

George L. Holstein, Jr., for appellees.

Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, and Montgomery, JJ. (watkins, J., absent).

Author: Montgomery

[ 193 Pa. Super. Page 218]

OPINION BY MONTGOMERY, J.

This appeal involves two questions. The first relates to the revival of the lien of a judgment after it has expired by the failure of the holder to institute revival proceedings within five years after the time of its entry. Although a judgment may lose its priority in relation to other judgments and mortgages and lose its lien entirely against property conveyed to innocent purchasers for value under certain circumstances, it may

[ 193 Pa. Super. Page 219]

    nevertheless be reinstated as a lien against remaining property by revival after five years from the date of its entry. Act of 1947, July 3, P.L. 1234, § 4 (12 P.S. § 880); Cusano, Admrx. et al., Appellants, v. Rubolino et al., 351 Pa. 41, 39 A.2d 906; Sivak Estate, 161 Pa. Superior Ct. 323, 53 A.2d 858, aff. 359 Pa. 194, 58 A.2d 456.

The second question relates to the effect on this judgment of a discharge in bankruptcy secured by one of the several defendants. The judgment was originally confessed in favor of the Myerstown Trust Company and against Clinton D. Turner, Catherine V. Turner, his wife, Rufus A. Swope, and Marguerite M. Swope, his wife, on a judgment note signed by all of the defendants. The note was dated March 24, 1953, and the judgment thereon was entered March 27, 1953, at No. 69 June Term, 1953. On May 8, 1953, the note and the judgment thereon were assigned by the Myerstown Trust Company to Rufus A. Swope and his wife, who are plaintiffs in this scire facias proceedings and also two of the defendants.

Clinton D. Turner, one of the defendants, has filed an answer alleging his discharge in bankruptcy as of November 9, 1954, after having listed in his statement of liabilities the claim on which the aforesaid judgment was entered, the filing of a proof of claim thereon by Rufus A. Swope (alone) and a payment to Rufus A. Swope of a pro rata dividend thereon, in complete satisfaction thereof.

Contrary to the contention of Clinton D. Turner, the lower court found that the claim which was listed in the bankruptcy proceedings was not the judgment under consideration but a judgment against Clinton D. Turner individually entered May 7, 1953, at 224 June Term, 1953, on a note signed by ...


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