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VOYTEK v. SCHUGARD. (09/12/61)

September 12, 1961

VOYTEK, APPELLANT,
v.
SCHUGARD.



Appeal, No. 64, Oct. T., 1961, from decree of Court of Common Pleas of Carbon County, June T., 1957, No. 114, in case of Walter J. Voytek v. Irvin Schugard et al. Decree affirmed.

COUNSEL

Frank D. Llewellyn, with him George I. Puhak, for appellant.

Roger N. Nanovic, for claimant, appellee.

Before Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (rhodes, P.j., absent).

Author: Montgomery

[ 196 Pa. Super. Page 217]

OPINION BY MONTGOMERY, J.

Appellees, Irvin Schugard and Hazletion Aircraft Sales, Inc., were lessees of Green Acres Airport, in

[ 196 Pa. Super. Page 218]

Packer Township, Carbon County, Pennsylvania, under a lease agreement dated August 18, 1955.

On or about January 5, 1957 the appellant, Walter J. Voytek, sold an airplane (not one of those claimed by Hazleton) to appellee, Irvin Schugard, for the sum of $1,750, of which $400 was paid in cash, and a note given for the balance of $1,350, signed by Irvin Schugard and payable to Walter J. Voytek. Schugard made two payments on this note, and then having failed to pay the balance the appellant caused judgment to be entered on same for that balance.

A writ of fieri facias was issued on the judgment and the sheriff of Carbon County levied on the following property which was at the airport: twin motor Cessna airplane, single motor Cessna airplane, Piper Cub airplane, Lincoln two-door coupe, and miscellaneous tools and equipment. Prior to the sheriff's sale Hazleton Aircraft Sales, Inc., by Claude H. Otter, president of said corporation, claimed the following items: the single motor Cessna, the Piper Cub, the Lincoln coupe, and the tools and equipment.

The sheriff caused a rule for interpleader to issue and testimony was taken on such rule by the court on December 19, 1957 and March 18, 1958. Thereafter the rule was made absolute and an issue framed to try the title to the claimed property. Whereupon claimant-appellee filed an affidavit of title to which appellant filed an answer.

Following the filing of the appellant's answer claimant-appellee petitioned the court for a rule for judgment for want of a sufficient affidavit of defense, setting forth that the answer admitted that Irvin Schugard was not the owner of the items levied upon at the time levy was made. The court made absolute the rule ...


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