Keystone Automobile Finance Co. v. Williams

Superior Court of Pennsylvania

Keystone Automobile Finance Co. v. Williams

82 Pa. Super. 109, 1923 Pa. Super. LEXIS 246

CourtSuperior Court of Pennsylvania

DecidedOctober 8, 1923

DocketAppeal, 168

StatusPublished

Cited by1 cases

This text of 82 Pa. Super. 109 (Keystone Automobile Finance Co. v. Williams) 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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Keystone Automobile Finance Co. v. Williams, 82 Pa. Super. 109, 1923 Pa. Super. LEXIS 246 (Pa. Ct. App. 1923).

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Opinion

Opinion by

Keller, J.,

The Act of April 19, 1901, P. L. 88, (with its amendments), regulates the practice in actions of replevin. It provides, (Section 2): “If any other person than the defendant named in the writ be found in possession of the goods and chattels he shall be duly served with the writ, and his name added as a party defendant to the cause. The writ shall command the sheriff to serve the party in possession, as well as the defendant named.” It also provides, (Section 3) : “The court may grant leave to any person, upon an affidavit filed that the goods and chattels so replevied belong to him, to intervene as party defendant in such suit;” etc.

The automobile in suit was, at the time of the issuing and service of the writ in this action, in the possession of the appellant, John R. Kammerer, a garage keeper, who claimed a lien upon it for storage and repairs. It appears that, by some error, the sheriff made return that the car was found in the possession of Frank Kammerer, (appellant’s brother), and summoned him as a party defendant, although he was not the owner or proprietor of the garage and not in possession of the automobile replevied. Instead of securing the amendment of the sheriff’s return, — after satisfying him that an error had been committed — ,appellant proceeded under section 3 of the act above for leave of court to permit him to intervene as party defendant in the action; but as he failed to allege that the chattel replevied belonged to him, the court had no authority to grant such leave.

*112 We have no doubt that upon proper proof that an error was committed as to the baptismal name of the party-in possession of the automobile, and that his name was John R. Kammerer, instead of Frank Kammerer, the court below will permit the sheriff’s return to be amended so as to accord with the facts, and the appellant will then be afforded an opportunity to litigate the validity of his alleged lien as against the plaintiff in this action.' It cannot be done on a rule to intervene as a party defendant claiming ownership.

The order is affirmed.

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Opinion by

Keller, J.,

The Act of April 19, 1901, P. L. 88, (with its amendments), regulates the practice in actions of replevin. It provides, (Section 2): “If any other person than the defendant named in the writ be found in possession of the goods and chattels he shall be duly served with the writ, and his name added as a party defendant to the cause. The writ shall command the sheriff to serve the party in possession, as well as the defendant named.” It also provides, (Section 3) : “The court may grant leave to any person, upon an affidavit filed that the goods and chattels so replevied belong to him, to intervene as party defendant in such suit;” etc.

The automobile in suit was, at the time of the issuing and service of the writ in this action, in the possession of the appellant, John R. Kammerer, a garage keeper, who claimed a lien upon it for storage and repairs. It appears that, by some error, the sheriff made return that the car was found in the possession of Frank Kammerer, (appellant’s brother), and summoned him as a party defendant, although he was not the owner or proprietor of the garage and not in possession of the automobile replevied. Instead of securing the amendment of the sheriff’s return, — after satisfying him that an error had been committed — ,appellant proceeded under section 3 of the act above for leave of court to permit him to intervene as party defendant in the action; but as he failed to allege that the chattel replevied belonged to him, the court had no authority to grant such leave.

*112 We have no doubt that upon proper proof that an error was committed as to the baptismal name of the party-in possession of the automobile, and that his name was John R. Kammerer, instead of Frank Kammerer, the court below will permit the sheriff’s return to be amended so as to accord with the facts, and the appellant will then be afforded an opportunity to litigate the validity of his alleged lien as against the plaintiff in this action.' It cannot be done on a rule to intervene as a party defendant claiming ownership.

The order is affirmed.

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82 Pa. Super. 109, 1923 Pa. Super. LEXIS 246, Counsel Stack Legal Research, https://law.counselstack.com/opinion/keystone-automobile-finance-co-v-williams-pasuperct-1923.

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