40 Pa. Super. 171 | Pa. Super. Ct. | 1909
Opinion by
This was an action of trespass brought to recover damages against the defendants for an alleged illegal sale of plaintiff’s personal property by virtue of a landlord’s warrant issued on be
‘ Counsel for appellee concedes in his history of the case that on January 7,1905, a fi. fa. was issued to the sheriff of Allegheny county on a judgment against the defendant therein, the plaintiff in this case, and that on January 9, 1905, the sheriff levied under said fi. fa. on all of the personal property of the said plaintiff, and that considerable portion of said property was the same afterwards sold by the defendants, on March 3, 1905, on the said landlord’s warrant, dated February 18, 1905, for rent due Sadie F. Rodgers on February 1, 1905, amounting to $113.64. The counsel further contends that the defendants sold on said landlord’s warrant goods which had not been previously appraised. However, the evidence does not point out, with certainty, the goods that were sold without being appraised. The evidence is quite clear that the goods seized by virtue of the warrant were duly appraised.
The undisputed evidence shows that said Morris, constable, had in his hands an execution from Alderman McMaster’s docket, dated February 24,1905, against the plaintiff and that he duly levied and advertised some of plaintiff’s personal property to be sold on said execution on March 3,1905. These were some of the same goods levied on by the sheriff on January 9, 1905. The evidence is quite clear that on March 3, 1905, constable Morris sold some of the plaintiff’s goods on the landlord’s warrant and some of them on said execution. For this reason it is not at all clear that the constable sold goods on the landlord’s warrant which had not been appraised. We ought not to presume that the constable did an unlawful act in this respect. It seems quite probable that the unappraised goods were sold on the alderman’s execution. It also appears in evidence, without dispute, that on March 2, 1905, a fi. fa. issued to the sheriff on a judgment of the Duquesne Brewing Company against
Upon the trial of the present case, the above facts appeared in evidence and there was not much dispute about any of them. The plaintiff’s declaration, after stating some formal matters, charged that upon March 3, 1905, the defendants entered upon the premises of the plaintiff and there unlawfully exposed to sale and sold certain personal property belonging to said plaintiff of the value of $1,500; that said sale was made under the pretended authority of a landlord’s warrant issued by Sadie F. Rodgers and addressed to William J. Morris. “That said sale of property was illegal in this: First, that said property was already in the custody of the law by virtue of fi. fa. issued out of the court of common pleas No. 2 of Allegheny county at No. 10, April Term, 1905, upon a judgment at No. 336, January Term, 1905, D. S. B., which said levy was made on the 9th day of January, 1905.”
There are no grounds laid in the declaration for recovering damages for any goods and chattels, except those specifically stated to have been in the custody of the law by virtue of the fi. fa. and levy above stated. All else in the declaration is merely in aggravation of the damages as to the said property in the custody of the law. According to plaintiff’s declaration, he did not sue for property that came into his hands after the sheriff’s levy; he expressly declared for the property only that was in the custody of the law as aforesaid. This suggestion disposes of his counsel’s argument that the judgment can be sustained because the defendants sold property that was not levied on nor appraised. The controlling question for our decision is, can the plaintiff sustain this action against the defendants for damages
The first assignment of error is that the court erred in refusing defendants’ motion for a compulsory nonsuit. Neither the granting nor the refusal of a compulsory nonsuit is assignable for error. In Rockwell v. Eldred Borough, 7 Pa. Superior Ct. 95, we said: “ Neither the entry nor the refusal of a compulsory non-suit can be assigned for error; a refusal to take it off is the only action respecting it which can be reviewed. This has been decided so often that citation of authorities is unnecessary.”
The second assignment is to the refusal of the court to grant a severance to Sadie F. Rodgers on the theory that if there was a trespass, she had no hand in it and no knowledge of it. But the landlord’s warrant was hers and the constable was acting there
But the important question is raised by the third, fifth, ninth and tenth assignments of error. “When the distress is made on goods which were previously levied upon on execution or foreign attachment, the distrainor does not become liable in an action of trespass at the instance of the tenant, or the plaintiff at whose suit the levy was made.
“Such a distress is a trespass against the officer who levied upon the chattels, as such goods are privileged from, distress. In such a case the execution creditor cannot bring an action of trespass against the landlord, his remedy being against the officer who made the levy, and who may bring an action of trespass or trover against any third person, who wrongfully divested him of the fruit of his levy:” Jackson & Gross, Landlord & Tenant, secs. 1135, 1136. See also Taylor v. Manderson, 1 Ashmead, 130; Pierce v. Scott, 4 W. & S. 344.
The levying by thé sheriff of an attachment or execution on chattels may be made by him without any manual handling of the property, and the property fully bound by it, and be in the officer’s power and possession, and the owner divested of the possession: Paxton v. Steckel, 2 Pa. 93. To maintain trespass it is absolutely necessary that the plaintiff must be in actual possession, or have the right of taking possession at the time of the trespass: Ward v. Taylor, 1 Pa. 238.
When the sheriff levies on goods under an execution, it divests the possession of the owner, and vests the sole and absolute possession of the goods levied upon in the sheriff, so absolutely and completely that the owner himself becomes a trespasser by removing the goods so seized. No possession or right of possession remains in the owner. Such levy vests the possession so fully in the sheriff, that he may maintain trespass for any disturbance of it: Welsh v. Bell, 32 Pa. 12. We think the levy by the sheriff under the fi. fa. of January 9, 1905, so completely divested the possession of the present plaintiff that he could not maintain this action of trespass. If the defendants
“A sheriff is absolutely liable for the forthcoming of property levied upon by him under an execution, unless deprived of it by the act of God, sudden accident or the public enemy.
“Hence, where a sheriff levied on goods sufficient to pay the debt of the plaintiff, and a part were stolen between the levy and sale, so that the money could not be made, he is responsible for the deficiency:” Hartlieb v. McLane’s Admrs., 44 Pa. 510. In this connection it will be recalled that the sheriff in the present case returned that he had released part of the plaintiff’s property to claimants and had sold the residue and it does not appear that the sheriff ever made any complaint against these defendants for seizing and selling personal property claimed by the plaintiff.
The learned court held, in his charge to the jury, that the plaintiff had the “right to sue the sheriff and his bondsmen— but that was not his only remedy. He had a choice of remedies, among them, the right to sue Mrs. Rodgers and Mr. Morris, for they by the illegal sale on the landlord’s warrant were the direct cause of the injury. As this ground alone entitles plaintiff to a recovery, it is unnecessary to have you pass upon the other ground presented,” etc. This is assigned for error in the seventh assignment. The learned court lost sight of the fact that the property claimed for in the declaration was all in the possession of the sheriff by virtue of his levy on the fi. fa. and this divested the possession of the plaintiff so that he could not maintain trespass.
It is argued by counsel for appellee that the sheriff did not remove the plaintiff’s personal property but left it in the care of the latter. We cannot see much force in this. The plaintiff avers in his declaration that the property was in the sheriff’s custody and in the custody of the law and if the sheriff left the property in the care of the plaintiff, this did not affect the sheriff’s possession under his levy nor did it vest any possession in the plaintiff in his own right.
In the charge to the jury the court cited and read secs. 83, 84
In the present case Mrs. Rodgers’ rent was paid for all of the month of January and the levy being made on the ninth of that month she was not entitled to any rent for the month of February out of the proceeds of the sheriff’s sale on his levy above mentioned. This is so because no portion of the February rent had accrued when the levy was made. Therefore, the court’s charge in this respect tended to mislead the jury. The sixth assignment is sustained.
We are of the opinion that upon the pleadings and evidence in this case the learned court erred in not giving a binding instruction in favor of the defendants and in discharging the rule for judgment in their favor non obstante veredicto.
The judgment is reversed and-judgment is here entered in favor of defendants non obstante veredicto.