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RYAN v. KIRK (04/17/62)

April 17, 1962

RYAN
v.
KIRK, APPELLANT.



Appeal, No. 153, March T., 1962, from order of Court of Common Pleas of Allegheny County, Jan. T., 1962, No. 1122, in case of Tice F. Ryan, Jr. v. Wallace E. Kirk. Order affirmed.

COUNSEL

Hillard Kreimer, with him Bernard Goodman, Stuart Seiavitch, and McCrady & Kreimer, for appellant.

Walter M. Newman, with him Wayland S. Bowser, Marshall J. Conn, and Ryan, Newman, Geer and Goldring, for appellee.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and O'brien, JJ.

Author: Cohen

[ 407 Pa. Page 199]

OPINION BY MR. JUSTICE COHEN

This is an appeal from an order of the Court of Common Pleas of Allegheny County, adjudicating appellant, Wallace E. Kirk, an insolvent within the meaning of the Insolvency Act of 1901 (Act of June 4, 1901, P.L. 404, 39 PS §§ 1-154) (Act) and appointing a receiver for his insolvent estate.

The proceedings in the court below were instituted by appellee, Tice F. Ryan, Jr., a creditor of appellant, in accordance with the provisions of the Act.*fn1 Upon notice to appellant, the court below, in accordance with the Act (39 PS § 33), entered a rule upon him to show cause why a receiver should not be appointed. Appellant filed an answer, and a hearing was held by the court below.

At the hearing, appellee introduced, and over the objection of appellant the lower court admitted in evidence,

[ 407 Pa. Page 200]

    a deposition of appellant taken in a prior action brought against him by another creditor. Appellee introduced this deposition as appellant's admission of his insolvency. Other evidence adduced at the hearing regarding appellant's alleged insolvency indicated: that appellant owed over $76,000 to his creditors including a judgment for nearly $9,000 obtained by appellee; that appellant's only assets consisted of used mining and industrial machinery and equipment which he had been unable to sell for a period of several years; and that while so indebted and without consent of his creditors, appellant encumbered all of these assets by executing and recording a chattel mortgage to his wife, as security for his indebtedness to her in the sum of over $35,000.

On the basis of the pleadings and the aforementioned evidence, the lower court, after determining that appellee had established an act of insolvency, made absolute the rule which had issued, adjudicating appellant as an insolvent and appointing the receiver. This appeal followed, raising three questions for our consideration.

Appellant contends initially that the lower court committed reversible error by admitting as substantive evidence, in contravention of the provisions of Pa. R.C.P. 4020,*fn2 ...


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