Tasker v. Sheldon

115 Pa. 107 | Pa. | 1887

Mr. Justice Gordon

delivered the opinion of the court, January 10th, 1887.

The Act of the 9th of April, 1848, vests in a defendant in execution, issued on a judgment obtained on a contract and distress for rent, an absolute right to have an exemption of his property to the value of three hundred dollars, and of this he cannot be deprived by the summary action of a court. He may voluntarily waive this right, or he may lose it by neglecting to claim it in the proper time, otherwise, if he demands of the officer levying the execution or distress for rent an appraisement, and it is refused, that officer must take upon himself the responsibility of such refusal: Freeman v. Smith, 30 Pa. St., 264.

That the case in hand comes within the Act is not denied, neither did the sheriff refuse to perform, or neglect his duty. The appraisement was regularly made, and the goods were delivered to the defendant, but on exceptions filed to the appraisement, the court not only set it aside, but passed upon and disallowed the right of exemption. This action was in excess of its jurisdiction. It undoubtedly had the power, for any proper reason, to set aside the appraisement even though it might become necessary to pass incidentally upon the right itself: Seibert’s Ap., 73 Pa. St., 359. But beyond this "the summary power of the court could not extend; the defendant cannot thus be deprived of the right to demand the exemption, and, upon the neglect or refusal of the officer to comply with that demand, to assert that right by an action at law. Now, whether the appraisement was properly or improperly set aside can be determined only by the record before us, for as there is no bill of exceptions we are.not at liberty to consider the evidence. We may say, however, that it has not been made to appear affirmatively that the court’s action was founded upon any reason which would support its summary jurisdiction; as that, from the nature of the action, the defendant had not the right claimed; that there was a waiver, or that this right was not asserted by the proper party; that the demand for the appraisement was not made in time, or that there was fraud or misbehavior in the holding of the appraisement. On the other hand, it appears by the record, that the court sustained the plaintiff’s exceptions-, and, as a consequence, the exemption was disallowed. But on turning to those exceptions we find in 'them nothing which warranted the action of the court. The first alleges the removal of some of the defendant’s goods and chattels from his residence at No. 1126' South Broad street, in value more than sufficient to have paid the plaintiff’s judgment and costs in addition to the exemption. But in this there is no allegation of either fraud or concealment, and we need not say that the removal of goods, without more, would not defeat the defendant’s right. The second and fourth exceptions assert, in effect, that the defendant had in his possession goods sufficient as well to satisfy the plaintiff’s writ as to meet the claim of exemption. But these are of themselves clearly good for nothing, for if the fact were as stated, there does not appear to have been anything in the way of a satisfaction of the plaintiff’s wait. The third and fifth allege a fraudulent removal and secretion of the goods, and charge the defendant with being a fugitive from justice, and, therefore, not entitled to the benefit of the Exeanptioar Law. But, it will be seen, that what is here chaa-ged strikes at the right itself, and unless the facts alleged were adanitted of a’ecord, the court could not assume the prerogative of a juay, and pass upon them in a summary manner. It was the plaintiff’s business to run the risk of an assuanption of this kind by indemnifying the sheriff, and directing him to proceed to sell the goods, and it was certainly not the business of the court to a’elieve him from that risk by attempting to pass upon the defendant’s right without the intervention of a juay.

The order disallowing the exemption is reversed and the appraisement confirmed.