Opinion
April 11, 1950.
July 20, 1950.
Appeals — Final or interlocutory order — Indefinite stay of execution.
1. An order which stays execution process indefinitely is final and reviewable on appeal.
Practice — Parties — Intervention — Challenge of judgment or execution process — Equitable assignment — Subrogation — Liens — Restatemen, Restitution.
2. Before one who is not a party of record can be heard to challenge a judgment or decree, or execution process issued thereon, he must obtain leave to become a party by application based on sufficient ground.
3. Where it appeared that, in a mechanic's lien proceeding against defendant's land, judgment had been entered on a writ of scire facias and execution for sale of the land issued on the judgment; and that the petitioners, averring that they had constructed the building on the premises in question, under a contract with defendant, and that they had brought an action in assumpsit against him to recover the balance due them, further alleged that they would suffer great financial loss if the sheriff's sale proceeded, and prayed for a stay of the sale until final disposition of their pending assumpsit action; it was Held that, although petitioners, not having asked to intervene and not having become formal parties to the proceeding, were not entitled to an indefinite stay of execution, by compliance with Rules of Civil Procedure 2329 et seq., they might still be allowed to intervene in the proceeding for equitable relief.
4. The equitable doctrine of equitable assignment, which is a particular application to the broad principle of subrogation, is enforced whenever the person making the payments stands in such relation to the premises or to the other parties that his interest, recognized either by law or by equity, can be fully protected and maintained only by regarding the transaction as an assignment to him, and the lien as being kept alive in whole or in part for his security and benefit.
5. Restatement, Restitution, §§ 104 and 162, cited.
Before RHODES, P.J., HIRT, RENO, DITHRICH, ROSS and ARNOLD, JJ.
Appeal, No. 27, April T., 1950, from judgment of Court of Common Pleas of Westmoreland County, Nov. T., 1949, No. 70 and Aug. T., 1948, No. 735, in case of Charles Lietka, trading as Manito Plumbing Heating Company, to use of Carroll Caruthers v. Eugene Hambersky, alias dictus Eugene G. Hambersky et al., trading as Hauser Bros. Judgment reversed.
Proceeding upon petition and rule to show cause why execution entered on a judgment in a scire facias sur mechanic's lien proceeding should not be stayed.
Order entered staying execution until disposition of action of assumpsit by petitioners, order by MCWHERTER, J. Use-plaintiff appealed.
Carroll Caruthers, appellant, in propria persona.
William D. Henning, for appellee.
Argued April 11, 1950.
In the performance of a contract between the parties, plaintiff had installed plumbing and plumbing fixtures in a new house then in the course of construction on the land of the defendant, Eugene Hambersky. He contracted directly with Hambersky and was not a subcontractor. On August 13, 1948, plaintiff filed a mechanic's lien against Hambersky's land in the sum of $1,141.18, alleged to be the amount due and unpaid after full performance of his contract. The validity of the lien was not questioned on technical or other grounds. A writ of scire facias issued and thereafter the lien was assigned to Hambersky's counsel, Carroll Caruthers, who as use-plaintiff, is the present appellant. After due service of the writ of scire facias on the defendant, judgment for the use-plaintiff was entered for want of an affidavit of defense in that proceeding, on October 11, 1949, for the above amount. On the same day levari facias issued on the judgment and pursuant thereto the real estate described in the lien was advertised to be sold on November 18, 1949.
On November 17, 1949, C.J. Hauser and Harry Hauser, trading as Hauser Brothers, presented their petition to the lower court alleging that they had constructed the building on the premises, under a separate contract with defendant Eugene Hambersky, and that they had brought an action in assumpsit against him to recover the balance of $7,650 due them on their contract. They alleged "That grave injustice will be done the petitioners and they will suffer great financial loss should said Sheriff Sale proceed" and they prayed for a stay of the sale on the present judgment until after final disposition of their pending assumpsit action. They were not parties to this proceeding but, nevertheless, the court on the above general allegation, stayed the sale on the levari facias as prayed for.
The order, since it stayed the sale indefinitely, was appealable. Cf. Marko v. Mendelowski, 344 Pa. 665, 25 A.2d 692. A stay of execution process, indefinitely, might result in wholly defeating a plaintiff's right to collect his judgment. Such order therefore is final and reviewable on appeal. Stofflett v. Kress et ux., 342 Pa. 332, 21 A.2d 31; Pontius v. Nesbit et al., 40 Pa. 309.
The lower court, in staying the sale, undoubtedly was familiar with facts advanced at the argument which do not appear of record and was impressed with the argument that the present use-plaintiff, who also represents Eugene Hambersky in the assumpsit action, is here attempting to sell his client's property on execution to put it beyond the reach of Hauser Brothers in their effort to enforce payment of the balance due them on their building contract. But the court in this instance was without authority to act on their petition, for the reason that Hauser Brothers were strangers to the proceeding. "Before one, not a party of record, can be heard to challenge the judgment or decree, [or, as in this case, the execution process issued thereon] he must obtain leave to become a party by application based on sufficient ground": Jordan's Petition, 331 Pa. 270, 1 A.2d 152; Freeman v. Behrman et al., 161 Pa. Super. 564, 55 A.2d 881. Since these appellees did not ask to intervene and did not become formal parties to the proceeding, the order of the lower court must be reversed.
Reversal of the present order, however, will not necessarily bar Hauser Brothers from equitable relief under the circumstances. By compliance with Rules of Civil Procedure, 2329 et seq., they may still be allowed to intervene in this proceeding. Cf. Arzinger et al. v. Baughman et al., 348 Pa. 84, 34 A.2d 64. They do not attack the present judgment but seek to look to defendant's land, as the plaintiff has done, for payment of the amount due on their construction contract. Facts, asserted at the argument in this appeal without contradiction, if supported, would seem to entitle these appellees to intervene, on compliance with the above Rules of Civil Procedure. By reason of the unusual situation presented, they may be entitled to be subrogated to plaintiff's rights and to an assignment of the present judgment upon payment of the debt, interest and costs. To invoke the principle a party need not necessarily be a junior mortgagee, judgment creditor or other encumbrancer in order to protect his own interest out of an estate by subrogation to the rights of a senior encumbrancer. Hopkins Mfg. Co. v. Ketterer, 237 Pa. 285, 85 A. 421; 50 Am. Jur., Subrogation, § 23; and Restatement, Restitution, §§ 104, 162, are of like effect. The equitable doctrine of equitable assignment, "which is a particular application of the broad principle of subrogation, is enforced whenever the person making the payments stands in such relations to the premises or to the other parties that his interests, recognized either by law or by equity, can only be fully protected and maintained by regarding the transaction as an assignment to him, and the lien . . . as being kept alive, either wholly or in part, for his security and benefit.": IV Pomeroy's Equity Jurisprudence, § 1211.
Judgment reversed.