213 Pa. 468 | Pa. | 1906
Opinion by
The plaintiff recovered a verdict in the court below in an action of trespass for injuries resulting in the death of her husband. On February 10,1905, after a new trial had been refused, judgment was entered on the verdict. On March 4, a fieri facias was issued thereon returnable the first Monday of June following. A levy was then made on some personal property in the office of the superintendent of the defendant company. On March 13, the defendant took an appeal to the Supreme Court. On the following day the levy was stricken off by order of the court. On May 22, another levy was made on the personal property in and around the superintendent’s office. On the same day a levy was also made on seven separate parcels of land, which were formerly a part of the right of way of the old portage road, and notice was served on defendant that inquisition proceedings would be held thereon June 5. The defendant then presented a petition asking that the sale of the personal property be set aside on the ground that the writ was invalid. On the return day of the writ, the sheriff made another levy on the railroad ties, rails, lumber and other materials used by the defendant company for emergency purposes, and advertised the same to be sold on June 22. On June 14, defendant presented a petition asking that the levy on the personal property and the inquisition proceedings on real estate be set aside. A rule to show cause was granted returnable June 19, at which time testimony was taken and the court discharged the rule. Thereupon the sheriff again advertised the sale of the personal property to take place July 6. On July 3, on petition to the Supreme Court, a rule to show cause why the appeal when taken should not be a supersedeas was granted, and an order was made staying the proposed sale and all other proceedings, the rule being made returnable to the western district October 14, 1905. On July 5, this appeal was taken from the orders of the court below as above indicated.
A little forbearance and professional courtesy, which should always be shown by members of the bar to each other, would have saved this vexed and complicated record. The fieri facias was issued a few days before the appeal was taken, without notice to the defendant or its counsel, and a levy was made on certain personal property, but on the day following the ap
Another question has been raised by tins appeal, which it is necessary to consider. The levy of June 5, was made on railroad ties, rails, lumber, water pipe, iron pipe and other personal property which the defendant alleges is used for emergency purposes. It is contended that this property is exempt from levy and sale under the ordinary writ of fi. fa. On grounds of public policy the law does not permit the seizure and sale on execution of the property of a railroad company necessary to enable it to perform its duties to the public. This is the settled rule of our cases: Foster v. Fowler, 60 Pa. 27; Youngman v. Railroad Co., 65 Pa. 278; Mausel v. Railway Co., 171 Pa. 606; Bell v. Wood, 181 Pa. 175.
In a number of cases it has been held that property essential and necessary to the existence'of a railroad company and in ac
The testimony taken on the rule in the court below clearly shows that the materials levied on were all intended to be used for emergency purposes; that it was necessary to keep in stock a large amount of these materials in order to ensure the proper maintenance and operation of the railroad; and that the materials on hand were not more than were necessary for these purposes. No evidence was offered in contradiction of the testimony of the witnesses produced by the defendant. Their testimony stands unimpeached. It clearly established the fact that the materials levied upon were used for repairs of bridges, tracks, sidings, and other like emergency purposes, wherein the very highest standard of care is required in the discharge of the defendant’s duties to the public.
The learned court was in error in disregarding the testimony offered and drawing its own conclusions that the materials levied on did not hinder the defendant in the performance of those acts authorized under its charter.
The order of the court of July 19, 1905, discharging the rule to show cause why the levy and inquisition should not be get aside, is reversed, and it is ordered that a writ of restitution be issued by the court below for the property sold.