190 A. 376 | Pa. Super. Ct. | 1936
Argued November 11, 1936.
The plaintiff has appealed from an order of the Municipal Court refusing judgment for want of a sufficient affidavit of defense in an action of replevin. It is the established rule that an order refusing summary judgment for want of a sufficient affidavit of defense will not be reversed on appeal unless the plaintiff's right to judgment is clear and free from doubt:Kaster v. Penna. Fuel Supply Co.,
The plaintiff, on June 19, 1933, brought this action in replevin against Victor Pastry Shoppe, Inc. to recover a soda fountain, valued by it at $800. The praecipe and the writ did not identify the fountain by manufacturer or number. The plaintiff's bond was defectively executed on behalf of the principal. The fountain was found in the possession of Arthur Bleiweiss, who was added as a defendant, filed a counter-bond and kept the fountain. The defendant, Victor Pastry Shoppe, Inc., was not served by the sheriff and, as to it, a return of `nihil habet' was made. The action *455 was litigated between the plaintiff and the added defendant, Bleiweiss, whom we shall hereafter refer to as the defendant.
The plaintiff, in due course, filed a declaration or statement of demand, to which defendant filed a demurrer. Then plaintiff filed an amended statement, to which defendant filed an affidavit of defense. Plaintiff then filed a second amended statement, to which defendant filed an affidavit of defense. Plaintiff did not object to the sufficiency of either of these affidavits of defense but set the case down for trial before a jury, and on January 13, 1936 it was brought to trial. During the trial plaintiff asked leave to file a third amended statement (Statement No. 4); a juror was withdrawn and the case continued. The third amended statement was filed on April 1, 1936, to which defendant filed an affidavit of defense on April 13, 1936 and a demand for a jury trial. On April 25, 1936 plaintiff entered a rule on defendant for judgment for want of a sufficient affidavit of defense to its fourth statement. From the order of the court, entered June 25, 1936, discharging this rule this appeal was taken. It is proper to add that on March 18, 1935, the defendant obtained a rule to show cause why the writ of replevin should not be quashed because of the principal's defective execution of the replevin bond. The court permitted the bond to be corrected by a proper execution by the plaintiff, and discharged the rule to quash.
The fourth (third amended) statement filed by plaintiff averred the manufacture of the fountain in suit by the Russ Manufacturing Company and its conditional sale to Royal Pastry Shop, Inc., of Trenton, N.J., on January 2, 1931, and the filing of the conditional sale contract in the office of the Clerk of Mercer County, New Jersey. It averred certain distress proceedings brought by the receiver of Fidelity Union Title *456 Trust Mortgage Guarantee Company, the landlord of said vendee, and a seizure thereunder of the fountain; a writ of replevin by the vendor and a judgment therein in favor of The Russ Manufacturing Company; that on or about June 21, 1932 The Russ Manufacturing Company assigned, transferred and set over unto this plaintiff all of its right, title and interest in and to said fountain, but did not aver whether the assignment was oral or in writing; that on July 1, 1932 plaintiff, being then the owner of said fountain entered into a conditional sale contract for the same to Victor Pastry Shoppe, Inc., and delivered the fountain to said vendee at Trenton, New Jersey; that on July 11, 1932 this conditional sales contract was filed of record in the office of the Clerk of Mercer County, New Jersey, and indexed in Vol. 1, p. 185, under Conditional Sales Respecting Real Estate; that Victor Pastry Shoppe, Inc. defaulted in the terms and conditions of the conditional sale contract and paid only $194 out of a consideration of $1154, leaving a balance due and owing of $960. It may be noted that in the copy of this conditional sales contract annexed to the statement, the vendor is named `Russ Soda Fountain Company, Successor to The Russ Manufacturing Company' and by paragraph 21, the contract is made subject to acceptance by "The Russ Manufacturing Company at 5700 Walworth Ave., Cleveland, O.". The contract seems to have been accepted at Cleveland, Ohio, on July 1, 1932, by "Russ Soda Fountain Company, successor to The Russ Manufacturing Company". The contract contains no reference to any assignment from the latter. The statement further averred that on or about January 30, 1933, the Fidelity Union Title Mortgage Guarantee Co., landlord of the premises occupied by Victor Pastry Shoppe, Inc., distrained upon said fountain for rent in arrears and on February 14, 1933 by its bailiff and constable, Samuel Avery, sold the *457 fountain to one Paul Kutner; that said distraint and sale were without the knowledge or consent of the plaintiff, and under the law of New Jersey passed no title to the purchaser; that Kutner removed the said fountain from Trenton, N.J. to Philadelphia and on February 20, 1935 (sic) caused it to be sold by Kaskie Quinn, auctioneers, to Bleiweiss, the defendant, who installed the same in his place of business at 27th and Reed Streets, Philadelphia; that on April 10, 1933 plaintiff first learned that said fountain had been removed to Philadelphia and installed in defendant's place of business and on April 15, 1933 it filed with the Prothonotary of the Court of Common Pleas of Philadelphia County a copy of the sales contract with Victor Pastry Shoppe. The statement cited certain laws of New Jersey relative to conditional sales, and limiting a landlord's right of distraint for rent to the goods of the tenant on the premises, and claimed the right to the possession of the fountain in suit.
The affidavit of defense filed by Bleiweiss, the added defendant, to this fourth plaintiff's statement, averred, for the most part, that he had no knowledge of the facts averred in the corresponding paragraph of the statement, that after investigation he had been unable to ascertain the truth thereof and therefore demanded proof of the facts averred on the trial. As to some of the paragraphs, he averred that information as to the matters alleged was in the possession of the plaintiff and not accessible to the defendant; and he demanded proof at the trial that the fountain which plaintiff alleged to have sold by conditional sales contract to Victor Pastry Shoppe, Inc. was the same fountain found in defendant's possession. He denied that all the requirements relative to the filing and indexing of conditional sales contracts had been complied with by plaintiff; and pointed out that no assignment of the fountain by The Russ Manufacturing Company to *458 plaintiff, as alleged in the statement, had been attached to it. He averred that he "purchased the chattels replevied in this case from Kaskey Quinn, Inc., who conduct an auction establishment at 525 Arch Street, Philadelphia, Pa., on February 20th, 1933. At the time of the purchase the defendant paid $300.00 consideration, and had no knowledge whatsoever, that there had been a constable's sale in New Jersey in which these chattels were involved, or that Paul Kutner or any other person removed said chattels to Philadelphia, but, on the contrary, defendant avers that he was an innocent purchaser for value without notice of any adverse title, and that the chattels were installed in his place of business pursuant to the purchase of the same as aforesaid."
Some of the averments in the plaintiff's statement, essential to a judgment in its favor, admittedly relate to alleged facts, the proof of which is under the exclusive control of the plaintiff. Others, such as levies and sales under distress proceedings, relate to nonjudicial matters in another State of which there is no court record and which it may not be reasonably possible for the defendant to prove or disprove. The court below applied the Act of July 12, 1935, P.L. 666, amending section 8 of the Practice Act of 1915, P.L. 483,1 and held that the denials of the defendant were, *459 in consequence, sufficiently definite to require the plaintiff to prove the facts averred at a trial.
The plaintiff, while seeking to apply to the defendant all the provisions of the Practice Act of 1915 and its amendments requiring definiteness and precision in affidavits of defense which deny averments in a plaintiff's statement, as ruled in numerous decisions of the Supreme Court and this Court, insists that the Act of July 12, 1935, supra, in mitigation of the former strict rule, should not apply because we have held that the practice in replevin actions is governed by the Act of April 19, 1901, P.L. 88, and not by the Practice Act of 1915, supra, which is by its terms limited to actions of assumpsit and trespass in the common pleas (except actions for libel and slander), including appeals in such actions from subordinate courts (Act of April 14, 1921, P.L. 144). See Willys-Overland, Inc. v. Stry,
There is nothing in that case which overrules or in any manner qualifies what we said in Willys-Overland, Inc. v. Stry,
The unusual circumstances of this case lead us to discuss one more point, touched upon by the court below.
While it is true that under the Replevin Act of 1901 and the Practice Act of 1915 an affidavit of defense is *463
now a pleading, yet the real purpose of requiring a full disclosure of the facts constituting the defense is to prevent the unnecessary delay of a trial, where the defendant has no real defense to the plaintiff's claim or demand: Kessler v. Perrong,
In the present case the plaintiff filed three declarations or statements of demand, to which defendant filed affidavits of defense. Plaintiff entered no rule for judgment for want of a sufficient affidavit of defense to any of them, but asked to have the case specially listed for trial before a jury, and actually proceeded to trial. We are of opinion that this operated as a waiver of his right to rule for judgment for want of a sufficient affidavit of defense. And the fact that the case did not go to the jury but a juror was withdrawn, on plaintiff's request to file a fourth statement, did not revive that right or justify his moving for judgment for want of a sufficient affidavit of defense to that fourth statement. The only purpose of an affidavit of defense at that late day was to fix the issues to be tried and determine what averments in the statement were admitted without proof. It is nearly four years since this action was brought. Three years were consumed in getting the case ready for trial and the issues to be tried clearly determined. Then, when all was ready for trial and trial had, in fact, been started, the forum selected was abandoned and an attempt was made to have the complicated issues above outlined, which call for a full and broad inquiry into the facts, determined as matter of law by the court. The case could have been tried and finally disposed of long before the appeal to this court was argued. We shall not encourage delays in other cases by permitting the course here adopted to become general.
We have gone thus fully into the matter of procedure to clear up what appeared to some attorneys to be inconsistencies in our opinions. As the case will go back for a trial we shall not discuss the merits or the legal principles applicable to the facts if proved. The recent decisions in York Ice Machinery Corp.v. Robbins,
Order affirmed.