Commonwealth ex rel. Menges v. Huttel

Superior Court of Pennsylvania

Commonwealth ex rel. Menges v. Huttel

4 Pa. Super. 95, 1897 Pa. Super. LEXIS 88

CourtSuperior Court of Pennsylvania

DecidedMarch 17, 1897

DocketAppeal, No. 161

StatusPublished

Cited by4 cases

This text of 4 Pa. Super. 95 (Commonwealth ex rel. Menges v. Huttel) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Commonwealth ex rel. Menges v. Huttel, 4 Pa. Super. 95, 1897 Pa. Super. LEXIS 88 (Pa. Ct. App. 1897).

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Opinion

Opinion by

Rice, P. J.,

The first question in this case is, whether mandamus will lie to compel a constable, charged with the execution of a landlord’s warrant, to have an appraisement made of goods elected to be retained by the tenant under the three hundred dollar exemption law. It should be noticed that the appraisement sought to be enforced is that provided for by the second section of the Act of April 9,1849, P. L. 533, and not the appraisement contemplated by the landlord and tenant Act of March 21,1772, 1 Sm. L. 370.

No precedent, in Pennsylvania, has been cited, and we have been able to find none, where the remedy by mandamus has been applied in such a case. This is not a conclusive argument against it, but it is not without weight. The manifest inconvenience which would result if it were to be held an appropriate proceeding against a mere bailiff for the determination of the manifold disputes arising out of claims for exemption on dis[99]*99tress for rent is a still stronger argument why it should not be recognized, except, possibly, in cases where the ordinary remedies would be wholly inadequate. No facts are alleged in the petition which make this case exceptional.

But aside from this, the general rule is, that two or more persons having separate interests seeking redress by mandamus cannot join in one and the same writ, but should have separate 'writs according to their several interests: 14 Am. & Eng. Ency. of Law, 219. Where the distinct rights of two or more persons are improperly joined, the writ is hable to be either superseded or quashed: Tapping on Mandamus, 324. In this case the landlord’s warrant issued against Henry F. Menges. Camilla claimed part of the goods distrained, and joined in the petition praying for a mandamus directing the defendant to proceed to make the appraisement “ so that your petitioners may retain what is exempted to each of them ” etc. Even if she had a standing to demand an appraisement and setting apart to her of the goods claimed by her, she asserts a separate and distinct-right. It may be that she has no such right, but it is enough for us to know that she asserts it, and according to the rule above stated should have prosecuted it in a separate suit. As the objection was made promptly the court committed no error in sustaining it.

We remark, although we do not at all rest the judgment on that ground, that except where the writ is sought to enforce a public duty or a duty affecting a particular public interest of the state the proceeding, like an ordinary action, is prosecuted in the name of the party instituting it as plaintiff, and not in the name of the commonwealth as formerly. Act of June 8, 1893, P. L. 345, sec. 4. This provision was overlooked in the present case.

The decree is affirmed, and the appellants are directed to pay the costs.

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Opinion by

Rice, P. J.,

The first question in this case is, whether mandamus will lie to compel a constable, charged with the execution of a landlord’s warrant, to have an appraisement made of goods elected to be retained by the tenant under the three hundred dollar exemption law. It should be noticed that the appraisement sought to be enforced is that provided for by the second section of the Act of April 9,1849, P. L. 533, and not the appraisement contemplated by the landlord and tenant Act of March 21,1772, 1 Sm. L. 370.

No precedent, in Pennsylvania, has been cited, and we have been able to find none, where the remedy by mandamus has been applied in such a case. This is not a conclusive argument against it, but it is not without weight. The manifest inconvenience which would result if it were to be held an appropriate proceeding against a mere bailiff for the determination of the manifold disputes arising out of claims for exemption on dis[99]*99tress for rent is a still stronger argument why it should not be recognized, except, possibly, in cases where the ordinary remedies would be wholly inadequate. No facts are alleged in the petition which make this case exceptional.

But aside from this, the general rule is, that two or more persons having separate interests seeking redress by mandamus cannot join in one and the same writ, but should have separate 'writs according to their several interests: 14 Am. & Eng. Ency. of Law, 219. Where the distinct rights of two or more persons are improperly joined, the writ is hable to be either superseded or quashed: Tapping on Mandamus, 324. In this case the landlord’s warrant issued against Henry F. Menges. Camilla claimed part of the goods distrained, and joined in the petition praying for a mandamus directing the defendant to proceed to make the appraisement “ so that your petitioners may retain what is exempted to each of them ” etc. Even if she had a standing to demand an appraisement and setting apart to her of the goods claimed by her, she asserts a separate and distinct-right. It may be that she has no such right, but it is enough for us to know that she asserts it, and according to the rule above stated should have prosecuted it in a separate suit. As the objection was made promptly the court committed no error in sustaining it.

We remark, although we do not at all rest the judgment on that ground, that except where the writ is sought to enforce a public duty or a duty affecting a particular public interest of the state the proceeding, like an ordinary action, is prosecuted in the name of the party instituting it as plaintiff, and not in the name of the commonwealth as formerly. Act of June 8, 1893, P. L. 345, sec. 4. This provision was overlooked in the present case.

The decree is affirmed, and the appellants are directed to pay the costs.

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4 Pa. Super. 95, 1897 Pa. Super. LEXIS 88, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-ex-rel-menges-v-huttel-pasuperct-1897.

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