Necker v. Sedgwick

36 Pa. Super. 593 | Pa. Super. Ct. | 1908

Opinion by

Henderson, J.,

At the trial of this case the defendant offered to show that the property levied on by him was not the property of the defendant in the execution, but of one Willis H. Smith, who was the sole and exclusive owner thereof. This offer was refused by the court and the jury was instructed that the defendant could not deny the ownership of the property in the defendant in the execution. This instruction was based on the interpretation given by the learned trial judge to the act of May 26, 1897, prescribing the procedure where goods or chattels are levied on by the sheriff and claimed by another than the defendant in the execution, which was in substance that the obligation was imperative on the sheriff to proceed for an inter-pleader as provided for in the statute and that his neglect so to do rendered him liable for the amount of the writ or the value of the property .levied on, if that was less than the debt, interest and costs, even if the defendant in the execution had no title whatever to the subject of the levy. This view of the act, we think, warps it from the object of its enactment and imposes a penalty on the sheriff not expressed nor intended. No such consequence was involved in the sheriff’s interpleader act of April 10, 1848, as extended throughout the state by the act of March 10, 1858, and unless the act of 1897 contains some provision which shows that the well-established law as to the liability of the sheriff has been changed, there is a lack of support for the conclusion reached at the trial. The interpleader practice in the case of a levy by the sheriff was established for the relief and protection of that officer, as appears from the act itself and from the decisions of the courts bearing on that subject, and not in behalf of contending claimants for the property. The sheriff was to be made secure against the trouble and expense of a suit as well as saved from the probability of a judgment against him. As between the claimant and the plaintiff in the execution he becomes a stakeholder liable to be called upon from different directions while in the honest discharge of his official duty, and is, therefore, entitled to protection. Of the act of 1897, it was said in Book v. Sharpe, 189 Pa. 44, that it is substantially nothing but a consolidation of the previously existing law with the addition of putting into statutory form the principal parts of the practice already established by the decisions and rules of court. The only material change in the law was said to be the provision of the fifteenth section which exempts the sheriff from liability if he comply with' the provisions of the act. The same view was taken in Commonwealth v. Burns, 14 Pa. Superior Ct. 248. This being the case, it follows that the liability of the sheriff in case of his neglect or refusal to proceed under the act of 1897, is for the damage sustained by the party injured thereby. The plaintiff in the writ could only lawfully sell the property of the debtor. He had no claim on the goods of a stranger, and if the debtor had no property there was nothing against which the creditor could proceed and he sustained no loss. It would seem to follow as a consequence of the reasoning of the appellee that if the sheriff had proceeded to sell without an interpleader the claimant could also have maintained an action against the sheriff for the value of the property sold even though he was not the owner of it, the consequence of the sheriff’s refusal to. take advantage of the statute being to close his mouth against the claim of either, the executing creditor or the claimant. We are persuaded that no such result as this was in contemplation when the act was passed, but that the purpose was to compact in one enactment the statutes and principal decisions relating to the subject with the addition of the provision, new to the law, saving the sheriff from actions if he proceed in accordance with the statute. The fair implication from the fifteenth section of the act .is that if the sheriff do not proceed under the act he shall remain liable as theretofore to the plaintiff or the claimant. The appellant was, therefore, entitled to show that the goods which he had seized on the execution did not belong to the debtor but to a stranger, and that the plaintiff had consequently suffered no injury by the refusal of the sheriff to proceed to sell.

The judgment is reversed and a venire facias de novo awarded.