93 Pa. Super. 457 | Pa. Super. Ct. | 1928
Argued April 27, 1928.
The plaintiff's action is replevin for a quantity of household goods alleged to have been in possession of the defendant under a bailment lease with respect to which the latter had made default in payment. The sheriff made return that he was unable to locate any person in possession of the property described, whereupon he posted a true and attested copy of the writ on the premises, and no counter-bond having been filed, he delivered the property described in the writ to the plaintiff, with the further return of nihil habet as to Landau, the defendant. The property was found on the premises formerly occupied by the defendant, but the fact was developed that he had died before the writ was issued. Subsequently letters of administration were issued to the Potter Title
Trust Co., on the estate of Landau. The administrator then made application to the court to quash the writ upon which application a rule to show cause was granted to which the plaintiff made answer. After hearing, the rule to quash was discharged on September 30, 1927. On November 12, 1927, the defendant made an application for an order to vacate the proceeding because the writ was issued after the death of Landau. After an answer and hearing this rule was discharged on *460
condition that the plaintiff file a petition to amend the decree adding the name of the Potter Title Trust Co., administrator of A. Landau as defendant, on or before fifteen days from the date of the order. The appeal is from that order. The appellant is confronted by a motion to quash the appeal on the ground that the question is res adjudicata, no appeal having been taken from the order of September 30, 1927 discharging the rule to quash the writ. The question raised by the appeal relates wholly to practice, and as no appearance was formally entered for the defendant, the question is apparently raised under the provisions of the Act of March 5, 1925, P.L. 23, wherein it is provided inter alia that when in any proceeding at law or equity a question of jurisdiction over the defendant is raised in the court of first instance it shall be preliminarily determined by the court upon the pleadings or with depositions as the case may require. From the decision of the court on such question an appeal is allowed to the Supeme or Superior Court as in cases of final judgments. Such procedure is declared to be de bene esse only and does not operate as a general appearance. The time allowed for an appeal is fifteen days from the date when the decision is rendered. It is admitted that no appeal was taken from the first order of the court, and it cannot be doubted that the applications of July 26, 1927 to quash the writ, and of November 12, 1927 to vacate the proceedings were based on the same state of facts and intended to produce the same result. If the court made a mistake in disposing of the latter application there was like error with respect to the prior petition. The question intended to be raised in both applications was the right to further prosecute a writ of replevin after it was made to appear that the defendant had died before the writ was issued. The action of the court was responsive to the petition whether the reason for the order was sound or not, and it was that order *461
which should have been appealed from. The application could not be renewed in subsequent proceedings and thereby avoid the operation of the Act of 1925 limiting the time for appeal: Henry's Est.,
The provision of the statute with reference to the time in which an appeal may be taken is mandatory and the appellant cannot suspend its operation by a new attempt to raise the same question: Polakoff v. Marchand College, etc.,
If, however, it were conceded that the appellant could avail itself of the application to vacate the proceeding in the method proposed, the action of the court in dismissing the petition was not erroneous. The rule of the common law that all personal actions died with the party does not apply to proceedings involving a right of property, and replevin, both at common law and under the Pennsylvania statutes, is such a proceeding. It is an action involving the right of possession of personal property in whose hands soever the property may be found. The principal office of the writ is to authorize the sheriff to take possession of the described chattels. The damage which may be recovered as a result of the tort is incidental and often insignificant. The action does not abate therefore on the death of either the plaintiff or the defendant: Keite v. Boyd, 16 S. R. 300; Reist v. Heilbrenner, 11 S. R. 131; Baldwin v. Cash, 7 W. S. 425. Under section 35 of the Act of June 7, 1917, P.L. 447, all personal actions, (with exceptions not here relevant) which the decedent might have commenced or in which he was liable to be sued, are authorized to be prosecuted or defended by executors and administrators. The plea at common law that the defendant was fictitious or dead at the time of issuing the writ was a plea in abatement as was a nonjoinder or misjoinder of parties defendant, and in such case the plaintiff was *462
entitled to particular information from the plea in order that he might make a better writ: Chittyon Pleading, p. 452; Wadsworth v. Woodford, 1 Day 28; Sandback v. Quigley, 8 Watts 460. If the application in question was not in effect a substitute for a plea in abatement, it was a plea in bar which could only be introduced by an affidavit of defense as provided by the Act of July 9, 1901, P.L. 614. Jennings v. Supreme Photoplay Co.,
The purpose of the plaintiff in instituting the action is manifest. It sought to recover property theretofore delivered on contracts in the nature of bailment leases. The only issue raised was one of title and the case was one within the purview of the Act of May 4, 1852, P.L. 574. A mistake was made with respect to the name *463
of the defendant; the executor or administrator of Landau would doubtless have been named, if the death of the latter had been known. The Statutes of Amendment are to be liberally construed in aid of the effective administration of justice, and the mistake as to the party or the form of action will not be permitted to produce injustice where the other party is not prejudiced and where the Statute of Limitations has not established a right. No new cause of action was introduced by the amendment allowed, nor had the statute run against the plaintiff. The situation was one therefore in which relief could be afforded, and regard for the alleged rights of the plaintiff required that it be granted: Booth v. Dorsey,
The appeal is quashed at the cost of the appellant.
