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Dork Legal Record

Vol. XXXI THURSDAY, DECEMBER 13, 1917. No. 31

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No. 7, December Term, 1917.

C. R. Richmond for plaintiff.
V. D. Acker for delendant.

August 13th, 1917. HECK, P. J.-This plaintiff offers the note in which the defendcase 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 "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 position. To meet the effect of the foregoing memorandum the defendant and her husband testify that the defendant told them that it was a guarantee that he was to return and complete his contract. If the contract price was $455.00 as sworn to by the defendant and her husband, as against the evidence of plaintiff alone that it was $590.00, and if McKissock's estimate of $300 is correct, then it is difficult to understand why the defendant would pay the plaintiff $150.00 in cash and give her note for $305.00, making in all $455, the exact amount of the contract price, and at the same time relieve the defendant from all further liability. While the question is a close one, taking the evidence as a whole, and the surrounding circumstances, we feel that rather than decide these questions of fact it would be better to send the case to a jury.

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The other objection is that no declaration, as provided by the practice act of 1915, has been filed by the plaintiff. This raises the question whether the new practice act applies to appeals to the court of common pleas from judgments of justices of the

peace.

Section 1, of the act is as follows: "Be it enacted, etc., that from and after Jan. 1st, 1916, in actions of assumpsit and trespass, except actions for libel and slander, brought in courts of common pleas, the procedure shall be as herein provided."

It will be noticed that if appeals from the justices of the peace are to be subjected to this act, it must be by virtue of some rules of statutory construction which bring the appeals, when perfected, within the meaning of the words "brought in the court of common pleas." The meaning of the word "brought" when applied to actions, has received definitions from many courts, as will be seen in "Words and Phrases," Vol. I, page 875. We quote a few of these as follows:

"To 'bring an action' has a settled customary legal, as well as general, meaning, and refers to the initiation of legal proceedings.

Miller v. Satterley.
Justice of the Peace-Practice (C. P.)-in a suit."
Appeals.

An appeal from the judgment of a justice of the peace is not an action "brought in a Court of Common Pleas," within the intent and meaning of Sec. 1, of the "practice act" of 1915, P. L 483. The procedure therein provided does not apply to such appeals.

"A suit is 'brought' when in law it is commenced, and there is no significanee in the fact that in the legislation of Congress on the subject of limitations the word 'commenced' is sometimes used, and at other times the word 'brought.' In this connec

Affidavit of defence raising question of tion the two words evidently mean the same thing, and are used interchangeably."

law.

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, C. 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 common pleas. The opinion states:

For the reasons above stated, the questions of the law are ruled against the defendant and in favor of the plaintiff, and the case is ordered placed upon the trial list without reference to the new practice act of 1915.

"As there seems to have been some doubt among the attorneys of the common pleas, it is proper they should understand it to be 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 tion, and no other, must be prosecuted, on the appeal, and that, in order to support the judgment in the common pleas, the declara

tion must state a cause of action which accrued prior to the commencement of the suit before the justice."

In the light of this decision and the definitions quoted, we do not see how an appeal from a justice of the peace can be considered as having been commenced or brought in the court of common pleas. Nor do we see any reason for straining the construction of the practice act that its provisions may be extended to appeals from a justice of the peace.

Lancaster Co

Shreiner v. Kauffman.
Replevin-Counter Bond-Lien for Repairs
-Automobile-Act of April 19, 1901,
Secs. 6 and 7, P. L. 89,

One who exercises his right to a lien on an automobile for repairs and storage, can not give a counter bond and retain possession of the same in case of replevin by the owner His claim is protected by the bond given by the owner.

Rule to strike off bond of defendant.
B. F. Davis for rule.

Bernard J. Myers, contra.

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 disposition of the appeals.

It has always been the policy of the law to avoid technicalities in practice before justices of the peace, and it seems likewise to have been the policy of the law to have the same practice follow appeals from the justice of the peace into the court of common pleas. Every reason is present for the summary disposition of appeals when in the court of common pleas as existed before the justice of the peace.

The new practice act does not disclose a clear and definite intent that it should be applied to appeals from justices of the peace, and without this, for the reasons given, we hold that appeals are not subject to the new practice act.

Some decisions from the lower courts have been called to our attention in which a

court, asking us to direct the sheriff to deliver over the automobile to him, upon which this rule was granted. The reason given why this should be done is that the defendant's only claim to the automobile is a lien on it for repairs and storage. The answer concedes the truth of this. The question for our consideration is whether one who has a lien on goods and chattels can retain possession of them by giving a counter bond when the real owner issues a writ of replevin for them.

Replevin lies where one claims title to property, either qualified or absolute, in goods and chattels, with a right of possession when such goods and chattels are in the possession of another. One having a lien on them for repairs has no property, either absolute or qualified, in them. Though he has a lien on them for that purpose, his

right is similar to that of a landlord who ed 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 tenant ed 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 of them no longer exists, and the owner therefore should not be longer deprived of their possession.

it is only in such a case that the retorno habendo issues; where, as in the case before us, the plaintiff's exclusive title is admitted, there can be no such issue and a verdict would be merely useless. In short, our conclusion is that, in the case of a lien for repairs, the 6th section denies to the tradesman the right to file a claim-property bond, and that the 7th section does not cover such

bond. The filing of it is a mere nullity, and the defendant's duty is to surrender the goods under the writ of replevin to the rightful owner thereof, and he must look Whatever doubt may have existed on this to the replevin bond as his legai 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 subject of replevin. No provision is made in it for one claiming a lien on goods, to give a counter bond and retain possession of them. As amended by the Act of March 19, 1903, P. L. 39, it provides that one in possession of goods and chattels may file a counter bond "in the same amount as the original bond, and with like conditions. The condition of the original bond, among a case, but refers only to cases where the other things, is that "if a plaintiff or plaintiffs shall fail to maintain their title to such goods and chattels he or they shall pay, &c." A party has no title to the goods and chattels upon which he has a lien, either qualified or absolute, and therefore can not fulfill the condition of the bond given by him. It follows, therefore, that such a person was not within the contemplation of the Legislature as one who could give a counter bond. The Act, however, does not make provision for those who have liens upon goods and chattels, as it provides in Sec. 6 that one only having a lien on them, shall be protect- the same way.

title itself is in dispute. To hold otherwise would enable the tradesman in a case like the present, where no fixed value has been agreed on, to use the claim-property bond as a mere instrument of extortion. The principle underlying the 6th section of the Act of April 19, 1901, P. L. 88, has been long established in England, and in proper cases our own courts have not hesitated to grant specific relief in equity: Morris on Replevin, (ed. 1878), 241."

In Burgert v. Fitch, 32 L. I. R. 420, Judge Edwards decides the same question

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 from him, and it must now be stricken off and the sheriff is directed to deliver the automobile to the plaintiff.

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invokes rule four of the "Rules of Court of Schuylkill county," which is as follows: “An appearacce de bene esse shall become general unless, within ten days after the return of 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 than ten days after the appearance was entered, but we are unable to ascertain from the record when the return of service of the sheriff was made. We are unable to deter

Service of Writ-Return of Sheriff-Ap- mine, therefore, whether or not this rule pearance De Bene Esse.

Rule 4 provides that an appearance de bene esse shall become general unless within ten days after the return of the writ the party entering the appearance shall file exceptions to said writ or to manner of service thereof.

Service of a writ regular on its face cannot be

contradicted and set aside merely by the unsup-
ported affidavit of the party upon whom the
service was made.

A. D. Knittle for plaintiff.
John F. Whalen for dependant.

April 23, 1917.

BECHTEL, P. J.-This

was taken within ten days from the time of the return of the writ.

It was noted, however, that no formal exceptions have been filed to the sheriff's return at all. Nothing has been done save the filing of the affidavit aforesaid, and the issuing of the rule. We do not think that this complies with the Rules of Court as hereinbefore set forth. In addition to this, we do not think that a service regular on its face can be contradicted and set aside merely by the unsupported affidavit of the party 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 Manheim township and make known to him the contents thereof on October 18th, 1916, it having first been ascertained by inquiry that

So ans

none of the executive officers of said com-
pany resided in Schuylkill county.
wers Charles F. Ditchey, sheriff.

Act of April 20, 1905, P. L. 239-Judgment upon the whole record-Priority of mortgage over lease.-The answer under the Act of April 20, 1905, P. L. 239, must aver that there are material facts in disOn the 10th 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 115.

Work Legal Record

seven or eight years. Unlike the occupants of the two suites of house keeping apartments above, she, when at home, does no

Vol. XXXI THURSDAY, DECEMBER 20, 1917. No 32. cooking, but eats in a dining-room maintain

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ed by the management, which also provides her with chambermaid service. In other words, it has access to, and the care of, her room, from which she is frequently absent for extended periods, but it does not have access at any time to the closet attached to that room in which she keeps much of her wearing apparel, books and other possessions. The kitchnette above is directly over this closet.

Plaintiff occupied a suite under a monthly lease from her landlord, directly below a suite with kitchenette, occupied by another party, and brought suit against defendant to recover damages done by water trickling down from said suite above her, into her clothes' closet. The ground of recovery, as set forth in the statement, being the 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. away she locked her closet and took its key with her. Several days after her return she discovered that the contents of the closet had been considerably damaged by water from the kitchenette above.

As regards the liability of landlords to third persons, the tenant and not the landlord is liable to third persons for accidents and injury occasioned to them by the premises being in danger

ous condition.

Motion to take off non-suit.
Irvin P. Knipe for plaintiff.
Samuel H. High for defendant.

July 13, 1917. MILLER, J.-The amount of money involved in this case is so small that the notes of testimony taken at its trial have not been transcribed.

The trial judge did, however, keep rather elaborate trial notes and from them, and because of the novelty and interesting character of the question in controversy, it is desirable, especially in case of review, that the material facts of the case should be stated in some detail.

They are, of course, not in dispute.

It was shown at the trial that the refrigerator in the kitchenette had been so placed that the drippings from the drain pipe in its bottom dropped into the open or larger end of a funnel which had been loosely set, directly below it, into the upper end of an open, vertical and stationary drain pipe which, leading through the floor and a trap, finally reached the street sewer. The upper rim of the funnel was about 4 inches above the floor level and six inches below the bottom of the refrigerator and, as stated, the joint between the funnel and the pipe into which it was set was an open one.

Mr. Evans, an expert plumber of 13 years experience, who was sent for by Mr. Scheibley, promptly after the latter learned of the accident, testified that "there was nothing defective about the pipes;" "they were in first-class condition, so far as I could see;" "this system was the one in common use. It can be done in no other way;" "this was the system required by the Board of Health;" "I know of no better method than that used;" and, "I never saw a drip pan used in this connection."

The defendant has conducted a large apartment house in the Borough of Norristown, since the year 1913. F. M. Scheibley is its manager. On the fourth, or topmost, floor,are two suites of, so-called, house-keeping apartments the tenants of which do their own cooking and housekeeping. One, Miller, and his family occupies one of these suites under a lease for a term which commenced on May 1, 1914. There is included 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 slime made by ice water." He said, "If

ments.

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."

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