Forman v. Fine

Superior Court of Pennsylvania

Forman v. Fine

89 Pa. Super. 329, 1926 Pa. Super. LEXIS 67

CourtSuperior Court of Pennsylvania

DecidedOctober 14, 1926

DocketAppeal 129

StatusPublished

This text of 89 Pa. Super. 329 (Forman v. Fine) 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.

Bluebook

Forman v. Fine, 89 Pa. Super. 329, 1926 Pa. Super. LEXIS 67 (Pa. Ct. App. 1926).

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Opinion

Opinion by

Trexler, J.,

The sheriff by virtue of a writ of execution issued upon a judgment obtained against Mike Forman by B. Fine, levied upon the goods found in the possession of the defendant, whereupon Rebecca Forman gave notice that certain specified goods belonged to her and thereafter a petition for an interpleader was presented and the issue was joined. The claimant stated that she had right and title to the articles by purchase with her own money from Bosenblum & *331 Jaffe. When the ease came up for trial, the plaintiff moved to amend by substituting the name Albert Cooper instead of R-osenblum & Jaffe. This was objected to and the court refused the amendment. By reason of such refusal, the plaintiff had no testimony to offer and stated she desired to suffer a voluntary non-suit. This the trial judge would not allow and a compulsory non-suit was entered. Should the court have granted the amendment?

The cause had been delayed and several continuances had. The court declined to go into the question of delay. He based his refusal of the amendment solely upon that it “would be in the nature of a new statement of claim” and its allowance would nullify the act of assembly of May 26, 1897, P. L. 95, Section 11, which provides that the plaintiff’s statement shall be filed within two weeks after the sheriff’s rule for issue is made absolute.

The basis of plaintiff’s claim is ownership. The proof of the purchase of the chattels from someone is evidence of ownership. The change of the name of the party of whom the plaintiff bought the goods would vary the proof, but does not change the nature of the claim or introduce a new cause of action. Had the lower court allowed the amendment, the plaintiff could plead surprise and the case could have been continued. It would have been proper to place the costs of the term upon the plaintiff. We do not, however, find any thing in the case as presented which justified the court in refusing the amendment.

The order of court entering a compulsory non-suit is reversed with a venire and the record is remitted in order that the amendment prayed for may be allowed upon payment of the term costs.

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Opinion by

Trexler, J.,

The sheriff by virtue of a writ of execution issued upon a judgment obtained against Mike Forman by B. Fine, levied upon the goods found in the possession of the defendant, whereupon Rebecca Forman gave notice that certain specified goods belonged to her and thereafter a petition for an interpleader was presented and the issue was joined. The claimant stated that she had right and title to the articles by purchase with her own money from Bosenblum & *331 Jaffe. When the ease came up for trial, the plaintiff moved to amend by substituting the name Albert Cooper instead of R-osenblum & Jaffe. This was objected to and the court refused the amendment. By reason of such refusal, the plaintiff had no testimony to offer and stated she desired to suffer a voluntary non-suit. This the trial judge would not allow and a compulsory non-suit was entered. Should the court have granted the amendment?

The cause had been delayed and several continuances had. The court declined to go into the question of delay. He based his refusal of the amendment solely upon that it “would be in the nature of a new statement of claim” and its allowance would nullify the act of assembly of May 26, 1897, P. L. 95, Section 11, which provides that the plaintiff’s statement shall be filed within two weeks after the sheriff’s rule for issue is made absolute.

The basis of plaintiff’s claim is ownership. The proof of the purchase of the chattels from someone is evidence of ownership. The change of the name of the party of whom the plaintiff bought the goods would vary the proof, but does not change the nature of the claim or introduce a new cause of action. Had the lower court allowed the amendment, the plaintiff could plead surprise and the case could have been continued. It would have been proper to place the costs of the term upon the plaintiff. We do not, however, find any thing in the case as presented which justified the court in refusing the amendment.

The order of court entering a compulsory non-suit is reversed with a venire and the record is remitted in order that the amendment prayed for may be allowed upon payment of the term costs.

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Bluebook (online)

89 Pa. Super. 329, 1926 Pa. Super. LEXIS 67, Counsel Stack Legal Research, https://law.counselstack.com/opinion/forman-v-fine-pasuperct-1926.