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Vol. XXXI. THURSDAY, DECEMBER 13, 1917. No. 31
No. 7, December Term, 1917.
August 13th, 1917. HECK, P. J.- This plaintiff offers the note in which the defend
case comes into court through an appeal ant agreed to pay that amount in thirty from a justice of the peace. Counsel for days. He also offered in evidence a mem- defendant, under Section 20, of the practice orandum in writing signed by defendant act of 1915, has filed an affidavit of defence and of even date with the note, which reads raising questions of law which we are now as follows:
“This is to certify asked to dispose of. Two propositions are that I still owe him (plaintiff) $300 bal presented for our consideration. One is that ance, and he is to surrender a judgment the plaintiff does not allege a sufficient cause note given to him this day for said amount.”) for action. The action is one arising out of As we have said, the evidence of what
contract and statement of claim has been took place when the note was given is about filed under the provisions of the act of June equally balanced, and that being the case the
6, 1879. We have examined the record defendant has not met the burden resting carefully, and are of the opinion that a good on her, unless there are corroborating cir
cause of action is set forth, and therefore cumstances
, or those from which inferences this exception is not sustained. may be drawn in corroboration of her posi
The other objection is that no declaration, tion. To meet the effect of the foregoing
as provided by the practice act of 1915, has memoranduin the defendant and her hus- been filed by the plaintiff. This raises the band testify that the defendant told them question whether the new practice act apthat it was a guarantee that he was to replies to appeals to the court of common turn and complete his contract. If the
pleas from judgments of justices of the contract price was $455.00 as sworn to by
peace. the defendant and her husband, as against
Section 1, of the act is as follows: “Be it the evidence of plaintiff alone that it was enacted, etc., that from and after Jan. 1st, $590.00, and if McKissock's estimate of $300 is correct, then it is difficult to under- 1916, in actions of assumpsit and trespass
, stand why the defendant would pay the except actions for libel and slander, brought plaintiff $150.00 in cash and give her note shall be as herein provided."
in courts of common pleas, the procedure for $305.00, making in all $455, the exact amount of the contract price, and at the
It will be noticed that if appeals from the same time relieve the defendant from all justices of the peace are to be subjected to further liability. While the question is a this act, it must be by virtue of some rules close one, taking the evidence as a whole,
of statutory construction which bring the and the surrounding circumstances, we feel appeals, when perfected, within the meaning that rather than decide these questions of of the words “brought in the court of comfact it would be better to send the case to a
The meaning of the word jury.
"brought” when applied to actions, has re
ceived definitions from many courts, as will Therefore, the rule is made absolute.
be seen in “Words and Phrases," Vol. I, page 875. We quote a few of these as
follows: Potter Co.
“To bring an action' has a settled custoMiller v. Satterley.
mary legal, as well as general, meaning, and Justice of the Peace --Practice (C. P.)- in a suit."
refers to the initiation of legal proceedings Appeais.
“A suit is brought' when in law it is comAn appeal from the judgment of a justice of menced, and there is no significanee in the the peace is not an action "brought in a Court of Common Pleas," within the intent and meaning fact that in the legislation of Congress on of Sec. 1, of the “practice acı” of 1915, P. 1. 483. the subject of limitations the word 'comThe procedure therein provided does not apply menced' is sometimes used, and at other to such appeals.
times the word 'brought.' In this connecAffidavit of defence raising question of tion the two words evidently mean the same law.
thing, and are used interchangeably."
Ct P. of
The Supreme Court of this state in the different conclusion has been reached. With case of McLaughlin v. Parker, 3 S. & R. the greatest respect for the opinion of the 144, in an opinion by Tilghman, Č. J., de judges who have rendered them, we cannot fines the status of an appeal from a justice concur in their views. of the peace when pending in the court of For the reasons above stated, the questions common pleas. The opinion states: of the law are ruled against the defendant
"As there seems to have been some doubt and in favor of the plaintiff, and the case is among the attorneys of the common pleas, ordered placed upon the trial list without it is proper they should understand it to be reference to the new practice act of 1915. our opinion, that the appeal is no more than a continuation of the action commenced before the justice; that the same cause of ac- c. P. of
Lancaster Co tion, and no other, must be prosecuted, on the appeal, and that, in order to support the
Shreiner v. Kauffman. judgment in the common pleas, the declara- Replevin-Counter Bond-Lien for Repairs tion must state a cause of accion which ac
- Automobile-Act of April 19, 1901, crued prior to the commencement of the suit
Secs. 6 and 7, P. L. 89. before the justice.”
In the light of this decision and the defi- One who exercises his right to a lien on an nitions quoted, we do not see how an appeal automobile for repairs and storage, can not give from a justice of the peace can be considered a counter bond and retain possession of the same as having been commenced or brought in protected by the bond given by the owner.
His claini is
in case of replevin by the owner the court of common pleas. Nor do we see any reason for straining the construction of Rule to strike off bond of defendant. the practice act that its provisions may be B. F. Davis for rule. extended to appeals from a justice of the
Bernard J. Myers, contra. peace.
The practice relative to appeals from March 24th, 1917. HASSLER, J.— This justices, without scarcely any change, has writ of replevin was issued by the plaintiff been undisturbed for over a century. It is to obtain an automobile in the possession of simplicity itself. An appeal that finds itself the defendant. The plaintiff gave a propin the court of common pleas is to be tried erty bond, as required by the Act of Assemde novo.
This is the only provision relative bly, before the writ was issued. When it to the manner of its disposition. Any fur- was served on the defendant he gave a ther provisions necessary to its proper dispo- counter bond, and was permitted by the sition are to be made by the several courts sheriff to retain possession of the automoof common pleas, each court being at liberty bile. The plaintiff subsequently, on Januto adopt such rules as will be most effective ary 13, 1917, presented a petition to this in determining the prompt and efficient dis- court, asking us to direct the sheriff to deposition of the appeals.
the automobile to him, upon It has always been the policy of the law which this rule was granted. The reason to avoid technicalities in practice before given why this should be done is that the justices of the peace, and it seems likewise defendant's only claim to the automobile is to have been the policy of the law to have a lien on it for repairs and storage. The the same practice follow appeals from the answer concedes the truth of this. The justice of the peace into the court of com- question for our consideration is whether mon pleas.
Every reason is present for the one who has a lien on goods and chattels summary disposition of appeals when in the can retain possession of them by giving a court of common pleas as existed before the counter bond when the real owner issues a justice of the peace.
writ of replevin for them. The new practice act does not disclose a Replevin lies where one claims title to clear and definite intent that it should be property, either qualified or absolute, in applied to appeals from justices of the peace, goods and chattels, with a right of possession and without this, for the reasons given, we when such goods and chattels are in the poshold that appeals are not subject to the new session of another. One having a lien on practice act.
I them for repairs has no property, either abSome decisions from the lower courts solute or qualified, in them. Though he have been called to our attention in which a has a lien on them for that purpose, his
right is similar to that of a landlord whoed by a conditional verdict, which the Court has the goods and chattels of his tenant shall enforce in accordance with equity levied upon for rent in arrear. It is well principles. Judge Barrett, in Shorley v. settled that such a landlord cannot give a Hub Mach. & Ct. Co., 23 D, R. 363, in a counter bond and retain possession of the well considered opinion abundantly supporttenant's goods and chattels when the tenanted by authorities, says, “The meaning of the has issued a writ of replevin for them; Pick- 6th section is unmistakable. It declares plainly ering v. Yates, 51 Sup. 436. If he does so that a lienor is entitled only to equity, and he is prevented from making a defense on equity is satisfied when the debt which is the trial of the case that he levied upon the foundation of his lien is paid or secured. them for rent in arrear; Bair v. Warfel, 5. The conditional verdict provided for is a L. L. R. 81. The reason for this rule is time-honored mode of administering equitthat one having such a lien on personal able principles in our Commonwealth. Its property is protected by the bond, and must effect, therefore, is to establish that the look to that, and not to the goods and right of the lienor is analogous to the right chattels for payment of his claim, and being of the distrainor under the old law. We so protected no reason exists why the real incline to the opinion that this is merely owner should be deprived of the possession declaratory of the old law, but if we should of them until any dispute as to the lien is err in this regard, and it should be held finally disposed of. The same reason ap- that, under the law prior to 1901, the lienor plies with equal force to one whose lien is had a right to file his claim-property bond, for repairs. The bond given by the plain-we are clearly of the opinion that the Act tiff when he issues a writ protects him, and of 1901 repeals it, and that under it the he must look to that for the amount due lienor has no right to file a claim-property him. The necessity of retaining possession bond. The filing of it is a mere nullity, of them no longer exists, and the owner and the defendant's duty is to surrender the therefore should not be longer deprived of goods under the writ of replevin to the their possession.
rightful owner thereof, and he must look Whatever doubt may have existed on this to the replevin bond as his legal security subject prior to April 19, 1901, has been for the amount claimed by him. There disposed of by the Act of Assembly of that is nothing in the 7th section which modifies date, P. L. 89. This Act is entitled "An this conclusion. Its initial words show that Act relating to replevin and regulating the it refers to a proceeding in which the practice in cases where writ of replevin is title to the property itself is in dispute, and issued,” and is intended to govern the whole it is only in such a case that the retorno subject of replevin. No provision is made habendo issues; where, as in the case before in it for one claiming a lien on goods, to us, the plaintiff's exclusive title is admitted, give a counter bond and retain possession of there can be no such issue and a verdict them. As amended by the Act of March would be merely useless. In short, our con19, 1903, P. L. 39, it provides that one in clusion is that, in the case of a lien for repossession of goods and chattels may file a pairs, the 6th section denies to the tradescounter bond "in the same amount as the man the right to file a claim-property bond, original bond, and with like conditions. and that the 7th section does not cover such The condition of the original bond, among a case, but refers only to cases where the other things, is that "if a plaintiff or plain title itself is in dispute. To hold otherwise tiffs shall fail to maintain their title to such would enable the tradesman in a case like goods and chattels he or they shall pay, the present, where no fixed value has been &c.” A party has no title to the goods and agreed on, to use the claim-property bond as chattels upon which he has a lien, either a mere instrument of extortion. The prinqualified or absolute, and therefore can not ciple underlying the 6th section of the Act fulfill the condition of the bond given by him. of April 19, 1901, P. L. 88, has been long It follows, therefore, that such a person was established in England, and in proper cases not within the contemplation of the Legis- our
have not hesitated to lature as one who could give a counter bond. grant specific relief in equity: Morris on The Act, however, does not make provision Replevin, (ed. 1878), 241." for those who have liens upon goods and In Burgert v. Fitch, 32 L. I. R. 420, chattels, as it provides in Sec. 6 that one Judge Edwards decides the same question only having a lien on them, shall be protect-: the same way.
We are convinced that the defendant is to whether the executive officers or either of not entitled to retain possession of the auto-them resided in Schuylkill county. On this mobile upon which he alleges he has a claim affidavit the rule in this case was granted. for repairs, as he is fully protected by the There has been no testimony taken in supbond given by the plaintiff. No counter port of a rule. Counsel for the plaintiff bond should therefore have been accepted invokes rule four of the “Rules of Court of from him, and it must now be stricken off Schuylkill county," which is as follows: "An and the sheriff is directed to deliver the appearacce de bene esse shall become general automobile to the plaintiff.
unless, within ten days after the return of The rule is made absolute.
the writ the party entering the appearance shall file exception to said writ or to the manner of service thereof." It will be noted
that this rule was taken considerably more C. P. of
than ten days after the appearance was enLeonard v. Atlas Nitrate Products tered, but we are unable to ascertain from Co., Inc.
the record when the return of service of the
sheriff was made. We are unable to deterService of Writ-Return of Sheriff - Ap- mine, therefore, whether or not this rule pearance De Bine Esse.
was taken within ten days from the time of
the return of the writ. Rule 4 provides that an appearance de bene esse shall become general unless within ten days It was noted, however, that no formal exafter the return of the writ the party entering the ceptions have been filed to the sheriff's reappearance shall file exceptions to said writ or to turn at all. Nothing has been done save manner of service thereof.
the filing of the affidavit aforesaid, and the Service of a writ regular on its face cannot be con:radicted and set aside merely by the unsup
issuing of the rule. We do not think that ported affidavit of the party upon whom the this complies with the Rules of Court as service was made.
hereinbefore set forth. In addition to this, A. D. Knittle for plaintiff.
we do not think that a service regular on its
face can be contradicted and set aside mereJohn F. Whaien for dependant.
ly by the unsupported affidavit of the party April 23, 1917
Bechtel, P. J.—This upon whom the service was made. The case comes before us on a rule to set aside sheriff's return is sworn to and should have the service of the writ and plaintiff's decla- at least equal weight with the affidavit of ration. The return of service is as follows: the party upon whom he makes the service. Served the within writ on the Atlas Nitrat
The rule to show cause why the service ed Products Company, Inc., by handing to of the writ of the plaintiff's declaration Allen Krappa, agent of said Company, a should not be set aside is herewith dischargtrue and attested copy of said writ, at the ed at the costs of the defendant. office of said Company in North Manheiin township and make known to him the contents thereof on October 18th, 1916, it hav
Act of April 20, 1905, P. L. 239-Judging first been ascertained by inquiry that ment upon the whole record-Priority of none of the executive officers of said
mortgage over lease. The answer under pany resided in Schuylkill county.
the Act of April 20, 1905, P. L. 239, must wers Charles F. Ditchey, sheriff.
aver that there are material facts in disOn the roth of November, 1916, the de- pute, and must aver the nature and characfendant entered appearance as follows; John ter of the facts, and where it sets forth inF. Whalen, Esq., d. b. e. On the 16th formation received, the sources should be of January, 1917, defendant filed the affida- given, and should contain an averment of vit of Allen Krapf, which set forth that he ability to prove the same. Where the facts was the person upon whom the sheriff served admitted show a mortgage on record prior the writ and that his name was Krapf and to the lease of the tenant in possession, the not Krapa, and denying that he was at the tenant is not in a position to defend on the time of the service of the writ the agent of ground of want of consideration for the the Atlas Nitrated Products Company, Inc., mortgage.—Horvath v. Rull, (Northampor prior thereto or since that time and de- ton C. P.) 16 Northampton Co. Reporter nying that the sheriff made any inquiry as i 115.
seven or eight years. Unlike the occupants Work Legal Record
of the two suites of house keeping apart
ments above, she, when at home, does no Vol. XXXI THURSDAY, DECEMBER 20, 1917. No 32. cooking, but eats in a dining-room.maintain
ed by the management, which also provides C. P. of
Montgomery Co. her with chambermaid service. In other Yost v. Hamilton Apartment Co.
words, it has access to, and the care of, her
room, from which she is frequently absent Plaintiff occupied a suite under a monthly lease for extended periods, but it does not have from her landlord, directly below a suite with access at any time to the closet attached to kitchenette, occupied by another party, and brought that room in which she keeps much of her suit against detendant to recover damages done by water trickling down from said suite above wearing apparel, books and other possessions. her, into her clothes' closet. The ground of re- The kitchnette above is directly over this covery, as set forth in the statement, being the
closet. alleged negligence of the defendant landlord, the trial judge, holding that the relation of landlord Late in the fall of 1914, Miss Yost was and tenant having existed, entered a compulsory absent for about a week. Before going non-suit, which it subsequently refused to remove.
As regards the liability of landlords to third away she locked her closet and took its key persons, the tenant and not the landlord is liable with her. Several days after her return she to third persons for accidents and injury occa- discovered that the contents of the closet had sioned to them by the premises being in danger- been considerably damaged by water from ous condition.
the kitchenette above. Motion to take off non-suit.
It was shown at the trial that the refrigeIrvin P. Knipe for plaintiff.
rator in the kitchenette had been so placed
that the drippings from the drain pipe in its Samuel H. High for defendant.
bottom dropped into the open or larger end July 13, 1917. MILLER, J.—The amount of a funnel which had been loosely set, diof money involved in this case is so small rectly below it, into the upper end of an that the notes of testimony taken at its trial open, vertical and stationary drain pipe have not been transcribed.
which, leading through the floor and a trap, The trial judge did, however, keep rather finally reached the street sewer. elaborate trial notes and from them, and rim of the funnel was about 4 inches above because of the novelty and interesting char- the floor level and six inches below the botacter of the question in controversy, it is tom of the refrigerator and, as stated, the desirable, especially in case of review, that joint between the funnel and the pipe into the material facts of the case should be which it was set was an open one. stated in some detail.
Mr. Evans, an expert plumber of 13 years They are, of course, not in dispute.
experience, who was sent for by Mr. ScheibThe defendant has conducted a large ley, promptly after the latter learned of the apartment house in the Borough of Norris accident, testified that "there was nothing town, since the year 1913. F. M. Scheibley defective about the pipes ;" "they were in is its manager.
On the fourth, or topmost, first-class condition, so far as I could see;": floor,are two suites of, so-called, house-keep- "this system was the one in common use. It ing apartments the tenants of which do can be done in no other way;" "this was the their own cooking and housekeeping. One, system required by the Board of Health ;" Miller, and his family occupies one of these "I know of no better method than that suites under a lease for a term which com- used;" and, “I never saw a drip pan used in menced on May 1, 1914.
There is includ- this connection.” ed in this suite of rooms a kitchenette,which
When Mr. Evans made his examination contains a refrigerator, that was owned and he found the permanent waste pipe, between provided for the tenant's use by the defend-(the funnel at its mouth and the trap, directant as part of the equipment of the apart- ly under the floor below, "stopped up with ments.
slime made by ice water." He said, "If On third floor of the house, directly below such pipes are not cared for by those who the Miller suite, is a single apartment with use them, they clog up soon.
Hot water clothes-closet and bath-room attached. This should be poured down them every two has been occupied by the plaintiff "as her weeks." "This is all that is required to be home," under a monthly lease, for the last done to keep the pipes open.”