237 Pa. 203 | Pa. | 1912
Opinion by
This is an appeal from an order making absolute a rule for judgment for want of a sufficient affidavit of
In this State, the action of replevin lies for property of one person in the possession of another, even if the claimant never had possession, provided he has the right of possession: Ferguson v. Lauterstein, 160 Pa. 427. In the present case, the air brake company having purchased and paid for the pig iron had the right of possession and can properly maintain the action. Appellant strongly urges that there were stored upon the Wister lot in addition to that pledged to the Wister Company, several hundred tons, perhaps a few thous- and, of pig iron, over which the Wister Company did not have dominion, and that this being a part of the general mass gave the receiver the right to assert title to and take possession of all the unpledged pig iron even if stored upon the Wister lot.. This may be true, but that would be a question between the Wister Company and the receiver, or perhaps other claimants. It is certainly true that the receiver had the right of possession to all the pig iron, not pledged, and of all other pig iron, the title to which remained in the furnace company at the time of his appointment as receiver. But this does not affect the rights of the air brake company in the present action. It is conceded that the 5,200 tons in dispute here were a part of the pig iron held in pledge by the Wister Coinpany; that it was in the possession of the Wister Company on the leased premises; that it was sold to the air brake company by the Wister Company as part of the iron pledged to it; and that the Wister Company had the right to sell and make delivery. Under these facts it is immaterial in determining the question of ownership
It is suggested by the learned counsel for appellant that the order making absolute the rule for judgment for want of a sufficient affidavit of defense is irregular under the pleadings, and that it not only settled the question of title, but had the effect of entering judgment for the amount of damages claimed. If the judgment had this effect we would feel called upon to reverse it in order that the damages, if there be any, could be properly assessed. But we quite agree with the learned counsel for appellee as to the effect of judgment for want of a sufficient affidavit of defense under Section 5 of the Act of April 19, 1901, P. L. 88, the form and effect of which are regulated by this section of the replevin act. It seems perfectly clear that a rule absolute for want of a sufficient affidavit of defense under the provisions of this section does nothing more than determine the title to the property in dispute. The plaintiff must resort to a writ of inquiry for the assessment of damages: Painter v. Snyder, 22 Pa. Superior Ct. 603. In the present case the plaintiff did not attempt to assess damages, and making the rule absolute did not include damages. There is therefore no necessity to strike off the assessment of damages, or to reverse the judgment on this ground. If the plaintiff claims damages it must resort to a writ of inquiry to have them assessed.
Judgment affirmed.