Rothermel v. Moyer

Citations

• 24 Pa. Super. 325
• 1904 Pa. Super. LEXIS 177

Syllabus

<p>Bankruptcy — Judgment—Execution—Stay of execution.</p> <p>A judgment note prior in date to the United States Bankruptcy Act of July 1, 1898, contained a stipulation for release of all errors and without stay of execution. In 1902 execution was issued and a sale of personalty was advertised to be held on October 28, 1902. On October 27th defendant petitioned the court for a stay of the execution on the ground that he had on that day presented his petition praying to be adjudged a voluntary bankrupt. The court accordingly stayed the execution. The petition in bankruptcy, however, was not filed on October 27th, but was filed on October 28th, and the defendant was subsequently adjudged a bankrupt. Plaintiff took no appeal from the order staying the execution, but nine months afterwards filed a petition for a rule to show cause why the order should not be vacated. An answer was filed to this petition. In the petition the plaintiff did not allege that he did not have notice of, or an opportunity to be heard on the motion for stay. He did not deny the bankruptcy petition was in the form required by the act of Congress, and he admitted that the petition was filed on October 28th. The petition did not deny that the bankruptcy proceedings resulted in an adjudication in bankruptcy. Held, (1) that, even if the case was heard on petition and answer without testimony, the court was warranted in concluding that so far as the lien of the execution and levy upon personal property was concerned, the case was within the provisions of clause sec. 67, of the Bankrupt Act; (2) that the court did not abuse its discretionary powers in refusing to open the order to stay the execution.</p> <p>Bankruptcy — Judgment—Stay of execution.</p> <p>Clause “},” section 67, of the Federal Bankruptcy Act, applies to a voluntary bankrupt, and is valid as to an execution on a judgment by confession, although such confession contains a stipulation'of “release of all errors and without stay of execution.