14 Pa. Super. 248 | Pa. Super. Ct. | 1900
Opinion by
The docket entries printed in appellant’s paper book indicate that this is an action upon the official bond of Edward C. Burns, sheriff of Jefferson county. The plaintiff’s have failed to print their statement, which may have assigned'breaches of
To sustain this action against the sheriff, the plaintiffs offered the record at No. 54, February Term, 1898, of the court of common pleas of Jefferson county, and the fi. fa. issued upon the judgment in that case. They proved the official character of the sheriff, and offered in evidence a bond, dated December 30, 1897, executed by the Platt-Barber Company, in favor of the sheriff, in the sum of $1,500, with sureties. This bond is not printed in connection with the evidence and we are left in the dark as to its condition. It thus appears that the only evidence produced by the plaintiffs which tended to establish that the sheriff made a false return to the execution to him directed, and that by due diligence he ought to have succeeded in making the money upon that execution, is to be found in the record at No. 54, February term, 1898, of the court of common pleas of Jefferson county. That record, as printed, discloses the proceedings below recited. The Platt-Barber Company commenced an action against Charles McQuown, by an attachment under the Fraudulent Debtor’s Act of the 17th of March 17, 1869, P. L. 8, and the supplements thereto. To this writ the sheriff made return that on December 29, 1897, he had attached certain goods and chattels, rights and credits, of the defendant, in the hands and possession of Miller Stoops,
The plaintiffs now contend that the court was without jurisdiction to make the order January 22, 1898, discharging
When the plaintiffs directed the seizure of goods claimed by a person other than the defendant, the remedy of the sheriff, prior to the Act of May 26, 1897, P. L. 95, was to demand a bond of indemnity, and if the plaintiffs failed to furnish the same, refuse to take the goods, or he might apply for an order upon the plaintiffs and the claimant to interplead, in accordance with the provisions of the Act of January 30, 1871, P. L. 12. There was no rule of law which compelled the owner of property attached, on notice of the suit, to intervene, on pain of forfeiting his right of property, and he might maintain an action against the sheriff for the wrongful seizure of his goods: Megee v. Beirne, 39 Pa. 50. It was decided in Rothermel v. Marr, 98 Pa. 285, that an attachment under the provisions of the act of March 17, 1869, did not authorize the sheriff to attach the goods of any person other than the defendant; that he might not seize the goods of a garnishee named therein, and that if he did so he would be liable in trespass, no matter what the event of the suit between the plaintiff and the original defendant. An owner of property is not, however, required to permit his property to remain in custody and finally to be sold and then resort to his action against the sheriff. If, upon the undisputed facts on the hearing of the rule to show cause why an interpleader should not be had, it appears that the plaintiff in the attachment would not be entitled to go to the jury upon the question of the ownership of the goods by the defendant, it is not error for the court to refuse an issue and dissolve the attachment as to the goods in question.
The act of 1897 did not enlarge the duties of the courts in regard to the granting or refusing of an issue. The purpose of the act was to protect the sheriff against the conflicting claims of the plaintiff in the execution, or attachment, and the
Judgment affirmed.