263 Pa. 150 | Pa. | 1919
Opinion by
This action of trespass is by a mortgage creditor for damages resulting on account of the removal of an engine from the mortgaged premises. In 1906, the American Box Company of Etna, Pa., obtained a Corliss engine from Wickes Brothers, a corporation. The engine weighed 35,000 pounds and was fastened by bolts to a concrete foundation, so as to be removable without injury to itself or the building. In 1907 the company borrowed f20,000 from appellant, Joseph Exler, which was secured by a mortgage on the plant. In 1908 the American Box Company was adjudged a bankrupt and a trustee was appointed. In 1909 Wickes Brothers presented a petition to the referee in bankruptcy averring that the engine had been delivered to the box company under a lease, and that numerous defaults had occurred in payments of rent, by reason of which petitioner was entitled to immediate possession of the engine, and praying for an order on the trustee to turn over and deliver the same. The trustee filed an answer resisting the application and averring that the engine belonged to the box company and was so permanently attached to the real estate as to be a part thereof. Exler intervened in that proceeding and also- filed an answer averring that the engine was a part of the freehold and subject to the lien of his mortgage, and that he was a bona fide pledgee thereof without notice, etc. The referee, without passing upon the merits of the controversy, authorized Wickes Brothers to bring a suit in replevin in the State court for the recovery of the engine. Pursuant to this authority a writ of replevin
The trustee, who was in possession of the factory property, including this engine, and in whom the title had vested by virtue of the proceedings in bankruptcy, was properly named as defendant in the replevin suit: Lawall v. Lawall, 150 Pa. 626. Exler, who had notice and was interested as a lien creditor, might have intervened and retained the property by giving a counter bond: See Act of March 19, 1903, P. L. 39 (4 Purdon’s Digest, 13th Ed., p. 4140). He not only failed to do so, but in effect authorized and directed the trustee to take
Appellant relies upon Roberts v. The Dauphin Deposit Bank, 19 Pa. 71; but there the effect of the judgment in the replevin suit does not seem to have been considered, and that was prior to the passage of the act above cited authorizing a claimant to intervene; aside from that the defendant was not there authorized by the claimant to take steps to protect his rights. Here the court in the replevin suit had full jurisdiction and the judgment entered therein is not affected by the fact that the defendant trustee permitted the case to go by default. In the absence of fraud, which is not here alleged, a judgment for want of an affidavit of defense or for other default is as conclusive as one entered on a verdict. . See Stradley v. Bath Portland Cement Co., 228 Pa. 108; Ogle v. Baker, 137 Pa. 378. A suit determines not only what was but what might have been litigated therein: Long v. Lebanon National Bank, 211 Pa. 165.
The judgment is affirmed.