185 A. 626 | Pa. | 1936
Argued May 12, 1936. This is an appeal from the order of the court below quashing a writ of replevin on the ground that a proper replevin bond had not been filed by appellant, plaintiff in the lower court. The writ issued on August 1, 1933, to recover certain ice-freezing machinery, and with the writ was filed a bond bearing appellant's corporate seal and the signature of its branch treasurer. On behalf of the surety, the bond was executed by two attorneys-in-fact, who filed therewith a copy of their power of attorney, certified to be authentic by a document bearing the corporate seal of the surety with the signature of its assistant secretary.
On November 6, 1933, appellees gave a counter-bond and retained possession of the machinery. In July of 1934, over eleven months after the issuance of the writ, appellees petitioned to quash the original writ of replevin upon the ground that appellant's bond was defective. This was denied, but an offer of a new bond was made which the court below allowed. After the new bond had been furnished, the court reopened the question and quashed the original writ. From this order an appeal has been taken. *371
As one ground for its action, the court below held that the bond was invalid because at the time of the filing thereof, the surety did not have on record in the county a certificate from the insurance commissioner as provided in the Act of June 25, 1885, P. L. 181, section 1, as amended by the Act of June 29, 1923, P. L. 943, section 1. By section 8 of the Replevin Act of April 19, 1901, P. L. 88, the authority to approve or reject the security offered is, in the first instance, vested in the prothonotary, his judgment thereon being subject to revision by the court. The Act of 1885, as amended, does not make it a prerequisite to the exercise of the judgment of the prothonotary or the court, or to the validity of the bond, that the surety offering it have on record a certificate from the insurance commissioner. It leaves the approval of sureties to those having the power under existing laws, but provides that, where a surety has been approved by the insurance department of the State and has filed in the prothonotary's office of a particular county a certificate showing its authorization to become a surety, the certificate shall be conclusive proof of its qualifications. While, therefore, the filing of a certificate conclusively establishes the capacity of a surety to act as such, a prothonotary or court may still accept a bond executed by a responsible surety even though the latter does not have such certificate on file in the county. The court below wholly misapprehended the provisions of the statute. Here it appears that a certificate was filed within a month after this bond had been placed on record. In disqualifying the surety on this ground alone, and in holding that its bond was therefore invalid, the court below was in error.
The Replevin Act makes the filing of a validly executed bond a condition precedent to the issuance of a writ: See HuronLeather Co. Ltd. v. Sklar,
We find here, however, no satisfactory proof from which the court can conclude that appellant's original bond was not adequate. It showed that the corporate seal of appellant had been attached and was accompanied by the signature of a branch treasurer. The presence of a corporate seal is prima facie evidence of authority of the corporate officer to execute it on behalf of the corporation: Fletcher, Corporations, section 487, *373
2471. See Tucker v. Erie N.E. R. R. Co.,
The order of the court below is reversed.