On return of rule to show cause.
For the rule, Grover C. Richman.
For the defendants John B. Kates and Delaware River Joint Commission, T. Harry Rowland.
Contra, Emory S. Kates, pro se.
Before Justice Perskie, at chambers, pursuant to statute.
[126 NJL Page 90] PERSKIE, J. This matter is before me on the return of a rule to show cause why an order for an execution against the
wages of John B. Kates should not be vacated because of alleged constructive fraud. The facts are stipulated.
John C. Bell, Jr., Secretary of Banking of the Commonwealth of Pennsylvania, receiver of the Bankers Trust Company of Philadelphia, the substituted plaintiff, recovered a judgment against the defendant, John B. Kates. This judgment was entered on December 31st, 1934, and there is now due thereon the sum of $14,625.99 with interest.
Subsequent to the date of the aforementioned judgment, one Betty Englart recovered a judgment against the same defendant in the sum of $8,186.45 plus $10 costs. By virtue of an order of this court, dated March 27th, 1939, the wages of the defendant, John B. Kates, were levied upon by the said Betty Englart. This wage execution was placed in the hands of the sheriff of Camden county who has since collected $15 a week upon it.
Shortly after the aforementioned order, Emory S. Kates, a son of the defendant John B. Kates, purchased the judgment held by Betty Englart and took an assignment of the same, together with an assignment of the wage execution for all of which he paid $500. The defendant John B. Kates had no knowledge whatsoever of the purchase by his son, and the sheriff, thereafter, paid the $15 to the son each week.
On October 5th, 1939, the plaintiff obtained an order for execution against the wages of the defendant which order was not to become effective until all the right and interest of Emory S. Kates, under the order of March 27th, 1939, were satisfied.
Plaintiff argues that since Emory S. Kates, the son, has already received $500 from the sheriff which is the price for which he purchased the judgment, all of his rights and interests thereunder have been satisfied. Accordingly, plaintiff now seeks to have the order of March 29th, 1939, "vacated or otherwise subordinated" to the order which he obtained on October 5th, 1939.
It is altogether clear that if Betty Englart had not sold her judgment and had continued to enjoy the fruits thereof, plaintiff could not be heard to complain. And the same is equally ...