39 Pa. Super. 184 | Pa. Super. Ct. | 1909
Opinion by
Two considerations influenced the learned trial judge in entering judgment for the defendant non obstante veredicto: (1) that an action of replevin would be the proper remedy and
We are not persuaded that the plaintiff was required under the act of May 26, 1897, to pay the cost of making an appraisement of the goods levied on. The seventh section of that act provides that this shall be paid by the claimant at the time of making the claim if the defendant in the execution shall be found in possession of the goods, and by the plaintiff in the execution if some other person be found in possession thereof. The property claimed by Mrs. Morrison was in her own home. She had the only possession of it which she could have, taking into consideration her relation to her husband. If the property belonged to her she was not required to separate from her husband, nor to put her furniture in storage in order to save it from her husband’s creditors. The property was not, therefore, in the possession of the defendant in the execution within the meaning of this section of the statute. The record does not call for a consideration of the evidence supporting the plaintiff’s
The judgment is reversed and judgment is now entered for the plaintiff against the defendant on the verdict.