Singer v. Pintzuk

53 Pa. Super. 43, 1913 Pa. Super. LEXIS 126

• Court: Superior Court of Pennsylvania
• Decided: February 27, 1913
• Docket: Appeal, No. 80
• Status: Published

Opinion

Opinion by

Henderson, J.,

This is an appeal from the action of the court below refusing to strike from the record a counter bond filed by Pintzuk, one of the defendants in an action of replevin brought by the plaintiff against him to recover possession of the plaintiff’s property seized by the defendant on- a distress for rent. The principal part of the argument of the counsel for the appellant and appellees is devoted to a consideration of the question whether the defendant in an action of replevin on a distress for rent may file a counter bond and retain the property. This question was before us in Pickering v. Yates, 51 Pa. Superior Ct. 436, handed down October 14, 1912. It was there held that the act of April 19, 1901, regulating the practice in cases of replevin, did not change the law as it theretofore existed with reference to the right of the defendant in respect to a claim property or counter bond. It is unnecessary to repeat the reasons given for the conclusion reached in the case referred to that a landlord against whom a writ of replevin is issued to recover chattels seized on a distress for rent cannot file a counter bond and retain the property replevied. He is not the owner of the property and does not claim to be the owner. This question was not involved in the case of Drumgoole v. Lyle, 30 Pa. Superior Ct. 463. If the question were properly before us we should feel constrained to reverse the order of the court, but we regard the action taken as interlocutory. The case is still pending and no substantial right of the plaintiff has been violated which cannot be redressed on the final determination of the case. The seventh section of the Act of April 19, 1901, P. L. 88, provides that if the title to the replevied goods and chattels be found finally to be in any party who has not been given possession of the same in said proceeding the jury shall determine the value thereof to the successful party and he may at his option issue a writ in the nature of a writ of retorno habendo requiring the delivery thereof to him with an added clause of fieri facias as to the damages awarded and costs; and upon failure so to recover them, or in the first instance, he may issue execution for the value thereof and damages awarded and costs. It will thus be seen that if the plaintiff be successful at the trial she has the election to proceed to recover the identical property with damages or she may, if she prefer, sue on the bond for the money value of her loss. Whether the defendant could file a counter bond or not, therefore, he did not by the' filing of the bond work a conversion of the property thus remitting the plaintiff exclusively to redress on the bond., We think, therefore, the appeal is premature and that it must be quashed.

Appeal quashed.