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WILNER v. CROYLE (03/20/69)

decided: March 20, 1969.

WILNER
v.
CROYLE, APPELLANT



Appeal from order of Court of Common Pleas of Somerset County, No. 959 C. D., 1966, and No. 67 E. D., 1966, in case of Norman S. Wilner, trading as Wilner Construction Co. v. Dorsey W. Croyle et ux.

COUNSEL

Frank A. Orban, Jr., for appellants.

Archibald M. Matthews, for appellee.

W. Louis Coppersmith, and Margolis and Coppersmith, for appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Spaulding, and Hannum, JJ. (Hoffman, J., absent). Opinion by Jacobs, J.

Author: Jacobs

[ 214 Pa. Super. Page 93]

On September 6, 1966, plaintiff Norman S. Wilner, trading as Wilner Construction Company, entered judgment on a note against defendants Dorsey W. Croyle and Esther P. Croyle, husband and wife, in the amount of $7500. This note was executed and delivered by defendants to plaintiff in connection with a $7100 home improvement contract for remodeling of the wife's individually owned house. A writ of execution was issued on October 3, 1966, and the sheriff subsequently levied on both the individually owned real property of the wife and the individually owned real property of the husband. On October 10, 1966, the plaintiff directed the sheriff to abandon his levy on the real property of the husband and to proceed only against the wife's real property.

On November 23, 1966, the wife filed a petition to open the judgment, asserting that plaintiff failed to complete the work in accordance with the contract.*fn1 The defendant-wife then filed a second petition on December

[ 214 Pa. Super. Page 949]

, 1966, seeking a rule to show cause why the plaintiff should not include in the execution the real property of the defendant-husband. The second petition also requested the court to make an order directing a fair contribution between the joint defendants in accordance with the Act of April 22, 1856, P. L. 532, § 9, 12 P.S. § 808. The court stayed the writ of execution in response to the first petition, granted rules on both petitions, and both petitions and the answers thereto came on for hearing on February 21, 1967.

After a full hearing, the lower court entered an order staying the writ of execution against the property of the wife, not exceeding thirty days, until the plaintiff reinstated or renewed the levy as to the property of the husband. The order further provided that if an amicable settlement between the parties was not reached within thirty days, the sheriff was to reinstate the levy against the husband's property and proceed with the writ of execution and sell both properties. No settlement was effected and the husband brought this appeal contending that the court below could not control the execution process in the manner directed by its order.

A brief recital of the factual background of this case is necessary for an understanding and determination of the issues involved. The husband and wife were a widower and widow, respectively, and each owned real estate in his own name. They were married in April, 1966, and the husband and his two minor children planned to move into the wife's house. Although the house was apparently satisfactory for the wife's own use, the parties agreed that because of the marriage and their intent to reside together certain improvements to ...


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