Mantz v. Kistler

Execution — Identity of defendant in the execution — Sheriff’s sale — Stay of sale — Injunction—Equity—Jurisdiction—Adequate remedy at law. In Pennsylvania a creditor is allowed to sell any title alleged to be in the debtor, and to try the validity of it afterwards in an action of ejectment by the purchaser. A person named as defendant in an execution cannot maintain a bill in equity to restrain a sheriff's sale of his property on the ground that he is not in fact the defendant, but that another person of similar or identical name is the defendant. Such a question is one of fact for the decision of a jury. The court will permit the sale to go on, and let the question raised by the person named as defendant be decided by a jury in an action of ejectment brought by the purchaser at the sale against the defendant named.

Appeal, No. 401, Jan. T., 1907, by plaintiff, from decree of C. P. Schuylkill Co., Sept. T., 1907, No. 2, dissolving preliminary injunction in case of Francis K. Mantz v. Charles S. Kistler et al. Bill in equity for an injunction. Motion to continue preliminary injunction. Bechtel, P. J., stated the case to be as follows. David Lorah et al. recovered a judgment against Francis Mantz et al., to No. 318 September Term, 1895, on March 28, 1907, for $1,700. This judgment has since become the property of Charles S. Kistler, and an execution has been issued thereon. The sheriff, in attempting to collect the amount of his writ, levied upon the property of Francis K. Mantz, who' came into court and filed his bill in equity to the above number and term, and obtained a preliminary injunction to restrain further action as to his property. The ground of this action is that the plaintiff in this equity proceeding says: He is not the Francis Mantz who is a defendant in No. 318, September Term, 1895, and consequently his property should not be made to answer for the above mentioned debt. It is, therefore, first, a question of identity, and, second, a question of remedy, under the contention of the defendant, as he denies the right of the plaintiff to the intervention of a court of equity. An answer has been filed, fairly raising these questions, and testimony has been taken. As this is a motion to continue an injunction, and the answer is a denial of the material allegations of the bill, the plaintiff has the laboring oar. The testimony submitted in his behalf shows that he is not the Francis Mantz, defendant in the judgment, as he contends, but the testimony of the defendant tends to contradict his evidence and tends to show the contrary. If the evidence of the defendants is to be accepted, then it rather convicts the plaintiff of the trespass which is the foundation of the judgment. A careful examination of all the evidence presented points out the existence of an honest disputed question of fact. The court entered a decree dissolving the preliminary injunction. Error assigned was the decree of the court dissolving the injunction.