O'Hara versus Baum

October and November Term, 1881, No. 261. O’Hara versus Baum. 1. A writ of error does not lie to an order of Court overruling exceptions to the return of a sheriff upon a writ of restitution. 2. For a false return the remedy is against the sheriff. Error, to the Court of Common Pleas, No. 1, of Allegheny County. Exceptions to sheriff’s return upon a writ of restitution. September 16th, 1874, A. F. Baum, to the use of S. P. Fulton, recovered a judgment against Michael O’Hara and Frances O’Hara, his wife, for $19,575 upon a scire facias sur mortgage. The cause was removed by writ of error to the Supreme Court, and there the judgment was reversed. While the cause was pending in the Supreme Court a writ of levari facias was issued in the Court below, under which certain real estate therein described was sold by the sheriff. A writ was thereupon issued, directing the sheriff, if the property had been delivered to the plaintiff, to cause restitution, and in case of sale to other persons to cause from the proceeds of the sale, or by demand upon the plaintiff, the amount of the said proceeds to be paid to the defendant, Frances O’Hara. To this writ the sheriff made the following return: “I do hereby certify and return that at the coming of this writ into my hands, the real estate described in the writ of levari facias herein mentioned had been sold, at sheriff’s sale, by my predecessor in office, to Margaret Wilson, for the sum of seventy-three hundred fifty-seven dollars ($7357). And the property having passed out of the hands of the plaintiff in the writ of lev. fa. before mentioned, I did proceed, as within commanded, to collect said purchase-money from said purchaser, and succeeded in obtaining and having paid to me by said Margaret Wilson the sum of sixty-six hundred and eighty-four dollars and seventy cents ($6684.70), on May 27th, 1879, which is all the money I am able to collect from said purchaser up to the present time. And I further return that I paid out of said sum, on June 2d, 1879, to M. A. Woodward, attorney for M. O’Hara and Frances A. O’Hara (as appears by the records), the sum of fifty-five hundred dollars ($5500), and took his receipt therefor as said attorney. And I further return that inasmuch as there was a question raised as to whom the balance of $1184.70 belongs, as well as the whole amount paid to me by Margaret Wilson, I now return that I hold said balance of $1184.70, subject to the further order of the honorable Court from which this writ issued.” To this return the defendant filed numerous exceptions for falsity and insufficiency, which the Court, July 23d, 1881, overruled. The defendant then took a writ of error, assigning as error the order of the Court overruling the exceptions. M. A. Woodward for plaintiff in error. November 14th, 1881. [MAJORITY — Per Curiam:] Per Curiam: There is no judgment here on which a writ of error lies. If the return of the sheriff was false, the remedy was by an action against him. Writ of error quashed.