Spencer v. Conrad
44 Pa. Super. 489
| Pa. Super. Ct. | 1910

Opinion by

Henderson, J.,

This action involved the title to a lot of mine ties. The ties were manufactured by Frank Fritchey who became *492indebted to numerous persons, among whom were John Hetrick and the plaintiff. Hetrick obtained a judgment against Fritchey from a justice of the peace pursuant to an attachment and issued an execution which was placed in the hands of the defendant, a constable. A levy was made on the ties by virtue of that execution and immediately thereafter the plaintiff gave notice to the constable that the property belonged to him; whereupon, the constable, having been indemnified, sold the ties in due time. This action was brought to recover damages for the alleged trespass. The first assignment is to the refusal of the court to grant a compulsory nonsuit and the second and third are to portions of the charge of the court. No requests were made for special instructions. The refusal of the compulsory nonsuit is not assignable for error: Crawford et al. v. McKinney, 165 Pa. 605; Morgan v. Duquesne Boro., 29 Pa. Superior Ct. 100; and that assignment need not be considered. The portions of the charge, covered by the second and third assignments, submitted to the jury the question of the bona fides of the sale of the property by Fritchey to the plaintiff and clearly and properly presented the issue of fact which the evidence disclosed. The property seized by the constable was at a railroad siding and the plaintiff was there in charge of it at the time of the seizure. Fritchey was not there. The plaintiff served notice that the property belonged to him and as he was in apparent possession and asserting title the question of delivery was one of fact to be considered and determined by the jury. The character and location of the property, the relation of the plaintiff to it at the time of the levy and the circumstances attending the alleged sale could not have been disposed of by the court. There were nearly 3,000 ties. They could not be conveniently removed. They were at a place suitable for transfer to cars and the plaintiff was there actually loading them into a car when they were attached. Whether there was such a change of possession as the nature and circumstances of the case admitted of was properly submitted by the *493court to the jury and this was done in a clear and impartial charge. If the defendant desired more specific instructions on the subject the court should have been requested to charge the jury more fully on the point. The evidence supports the verdict and we do not see anything in the case which would justify a reversal of the judgment.

The judgment is affirmed.