— Plaintiff, on July 22, 1929, issued a writ of replevin to retake from defendant, Louis S. Casten, certain machinery. The sheriff, on serving the writ, found the machinery in the possession of Israel Stein, constable, whose name was thereupon added to the writ as a defendant. Plaintiff filed a statement of claim, averring that the machinery in question had been delivered by plaintiff to defendant Casten, under a conditional sale agreement, and that Casten had defaulted in his payments thereunder. Defendant Stein filed an affidavit of defense and counterclaim, in the latter of which he set forth that the machinery in question had been previously repossessed by plaintiff on o.r about June 7, 1929, under a writ of replevin issuing out of Court of
Endorsed on this counterclaim was a notice to plaintiff to file a reply within fifteen days, etc. Plaintiff filed no reply and defendant Stein took a rule on plaintiff for judgment for want of a reply to defendant’s counterclaim, which was made absolute by this court on February 29, 1932, and judgment entered accordingly. Plaintiff has now taken a rule to show cause why this judgment should not be stricken off, arguing that no counterclaim can be filed in such a case as this and that the judgment was, therefore, improperly entered.
The Replevin Act itself contains no provision for the filing of a counterclaim, but Rule No. 68 of the common pleas courts provides as follows: “In all actions of replevin in which the defendant does not claim ownership of the property replevied but claims a lien upon the property or a right therein under distraint for rent, the defendant shall assert such claim in his affidavit of defense, in like manner and form as is required for counterclaims in actions of assumpsit under the Practice Act; and thereafter the same practice and procedure shall be had as in such actions, and judgment may be entered against the plaintiff for want of a reply or for an insufficient reply, as the case may require.”
Counterclaims in actions of replevin are, therefore, proper only when within the wording of this rule. Plaintiff contends that this rule does not apply, since this is not a landlord and tenant case. If the counterclaim had been filed by Stein in the original action of replevin, wherein plaintiff retook the machinery when in the possession of Stein under distraint against Casten, plaintiff’s argument would be sound. But that is not the issue before us. In the present case, according to the counterclaim, the machinery was replevied by plaintiff when in the possession of Stein under distraint against plaintiff for rent owing by plaintiff. Stein claims a right in the machinery under the distraint for rent, as Rule 68 provides, and it was not only his right but his duty under said rule, if he wished at any time to assert such claim, to do so in the manner which he has adopted in this case. The record is, therefore, regular on its face and the judgment cannot be stricken off.
Since plaintiff’s failure to file a reply may have been due to a misconception on a point of law, which at best is somewhat beclouded, if counsel comes before the court in a proper proceeding and with an averment of a reply to defendant’s counterclaim raising issues which should be submitted to a jury, we have no doubt that the court will afford plaintiff such remedy as is necessary to avoid injustice.
And now, to wit, May 26, 1932, the rule to show cause why the judgment in' the above matter should not be stricken from the record and from the judgment docket is discharged.