Clark v. Morss

• Decision Date: 11 May 1891
• Docket Number: 82
• Citation: Clark v. Morss, 142 Pa. 311, 21 A. 802 (Pa. 1891)
• Parties: E. H. CLARK, TO USE, v. L. W. MORSS ET AL
• Court: Pennsylvania Supreme Court

21 A. 802

142 Pa. 311

E. H. CLARK, TO USE, v. L. W. MORSS ET AL

No. 82

Supreme Court of Pennsylvania

May 11, 1891

Argued February 25, 1891

APPEAL BY DEFENDANTS FROM THE COURT OF COMMON PLEAS OF WAYNE COUNTY.

No. 82 January Term 1891, Sup. Ct.; court below, No. 41 March Term 1887, C.P.

On March 15, 1887, judgment was entered in favor of Eben H Clark, to use of B. K. Bortree and Matilda Bortree, his wife in right of the wife, Dr. F. E. Bortree and Henry Bortree against L. W. Morss and J. M. Fanning, upon a bond executed by the defendants, of date September 10, 1883, to Eben H. Clark, high sheriff of the county of Wayne, in the sum of twelve hundred dollars, concluding as follows:

"The condition of this obligation is such that if the said bounden L. W. Morss shall be and appear before the judges of the Court of Common Pleas, to be held in and for the county aforesaid the first Monday of October next, then and there to prosecute his suit with effect and without delay against B. K. Bortree, Henry Bortree, F. E. Bortree, and Amanda Bortree, wife of B. K. Bortree, for taking and unjustly detaining his goods and chattels, to wit: . . ., and also make return of the goods and chattels, if return thereof be adjudged by law, and also save and keep harmless the said sheriff touching the replevying the goods and chattels aforesaid, then the above obligation to be void and of none effect, or else to be and remain in full force and virtue. And we do hereby confess judgment for the above sum, in favor of the said Eben H. Clark, sheriff, waiving inquisition and exemption, and release of all errors."

On May 3, 1887, the defendant Morss presented his petition averring that on the trial of the action of replevin, at No. 377 May Term 1883, the court directed a verdict for the defendants therein on a technical ground, although the right of property was shown to be in said L. W. Morss, the plaintiff therein; that no damages were found in said verdict, and none had ever been assessed; and that the chattels replevied had been purchased by said Morss at sheriff's sale and by him left with the defendants in said action, with the right to remove them at his pleasure. Thereupon, the court made an order directing the judgment entered on the bond to be opened, and the defendants to be let into a defence. An issue was framed accordingly. ^[*]

At the trial of the issue, on March 11, 1890, the plaintiffs offered the bond in evidence.

Mr. Wilson: We object to the admission of this bond: (1) because it does not sufficiently refer to and identify the replevin suit to which it makes reference; (2) because it is a bond with a warrant of attorney for the confession of judgment; (3) because it has never been assigned to the plaintiffs in this suit by the sheriff; (4) because they should have first issued a scire facias on this bond, in order to ascertain the damages, before proceeding upon the bond.

By the court: Objections overruled; exception.

The plaintiffs then offered in evidence the record in the continuance docket, No. 377 May Term 1883, L. W. Morss against B. K. Bortree, Henry Bortree, Dr. F. E. Bortree and Amanda E. Bortree, showing: Summons in replevin for five cows, etc., etc.; replevin issued September 10, 1883; October 19, 1883, sheriff returned replevied six cows, etc., etc.; May 15, 1884, jury called, and they find for the defendants May 16, 1884; July 14, 1884, writ of retorno habendo issued, and sheriff returns "eloigned;" April 24, 1889, "judgment entered in favor of the defendant, B. K. Bortree, and against L. W. Morss, the plaintiff."

Mr. Wilson: We object to the admission of this record for the purpose of showing a breach of the conditions of the bond: (1) For the reason that it does not show that any judgment was entered in the replevin suit, at the time of the entry of the judgment on the bond. (2) The record shows that on April 24, 1889, judgment was entered in the replevin suit against the defendants, and in favor of the plaintiff. (3) The record shows no judgment against the defendants in the replevin suit, and if the judgment entered therein against the defendants and in favor of the plaintiff is a clerical error, the record does not show what judgment should have been entered against the plaintiff, whether judgment that the defendants should have return of the chattels irreplevisable, or judgment that the defendants recover the damages and costs sustained in that suit, by the taking of the property on the writ of replevin; and therefore, the record shows no breach of the conditions of the bond by the plaintiff in the replevin suit.

Mr. Purdy: I now ask that the clerk be directed to amend the record so that the record of the judgment shall conform to the verdict.

By the court: If any amendment of the record is asked, it must be founded on a motion in writing.

A motion being made in writing, the following order was made:

Record amended by making the following entry on continuance docket, in No. 377 May Term 1883: "It appearing that a clerical error exists in the record, in that the names of the parties plaintiff and defendant are transposed in entering judgment on the verdict, now, March 11, 1890, the defendants above named move that the error be corrected so as to read 'judgment is entered against the plaintiff and in favor of the defendants.' Same day, plaintiff objects to the amendment, filing reasons therefor. Now, March 11, 1890, objection overruled, amendment allowed; exception."

By the court: Objections to the admission of the abovedescribed records in evidence overruled; exception.

It was admitted by the counsel for plaintiffs and defendants that Matilda Bortree, the present plaintiff, was the same person named in the replevin suit as Amanda Bortree, and that she was the wife of B. K. Bortree.

Testimony was then presented on both sides, upon the question of the actual ownership of the property in dispute.

At the close of the testimony, the court, DREHER, P.J., 43d district specially presiding, charged the jury in part as follows:

On the tenth day of September, 1883, Mr. Morss sued out a writ of replevin from this court against the Bortrees who now appear in the present suit as plaintiffs. That action of replevin was brought by Mr. Morss to recover the possession of five cows, two three-year old steers, set of light bobs, set of heavy bobs, a lumber wagon, a horse rake, a set of double harness, trace chains, fanning mill, scoop shovel, one gray mare and a hay rake. The replevin embraced other property, which, however, was not replevied; that is, it was not taken by the sheriff and delivered to Mr. Morss. But, by virtue of the replevin, the sheriff did deliver to Mr. Morss the property a list of which I have just read in your hearing. Instead of five cows, however, which were mentioned in the replevin, he delivered to Mr. Morss six cows.

A replevin is a writ sued out by one party claiming to have the right of possession of property in the possession of the defendant named in the writ. In such action of replevin, there may be involved simply the right to the immediate possession of the property, and there may also be involved the right of ownership. While the plaintiff in an action of replevin may have the title to the property, and be the real owner of it, yet the defendant may have the right, under some arrangement between himself and the plaintiff, to the possession. Therefore, it sometimes occurs that when the owner of property issues his replevin to recover the possession, he may be defeated in his suit by the defendant showing, though admitting the ownership of the plaintiff, that he, the defendant, by contract or arrangement with the plaintiff, is entitled to retain the possession.

When a plaintiff sues out his replevin, the sheriff is not bound to execute it until the plaintiff gives him security in the form of a bond signed by the plaintiff in the writ, and usually the sheriff requires of him some other person as security. Mr. Morss did execute a bond to the sheriff with Mr. Fanning as security. That bond was for the purpose of indemnifying and saving harmless the sheriff from any damages which might accrue to him for taking this property from the possession of Mrs. Bortree and her sons, and delivering it to Mr. Morss. The condition of the bond is in these words: . . .

That case did not come on for trial at October Term, 1883, but it came on for trial at May Term, 1884, and on the sixteenth day of May, 1884, Judge McCollum, before whom that case was tried, directed the jury to render a verdict in favor of the defendants in that suit, who were the Bortrees. The record of that suit has been given in evidence, and the charge of Judge McCollum, in which he distinctly stated to that jury that under the plaintiff's own statement he had prematurely sued out his writ of replevin, because the plaintiff then, as he now says, left the property in the possession of Mrs. Bortree. She, therefore, was in the lawful possession of it; and, if Mr. Morss was the owner, having left it in her possession, before he could sue out his writ of replevin successfully, he should have demanded the possession of the property; and, not having done that, Judge McCollum held that the only verdict that could be rendered in that suit, and on that trial, must be in favor of the defendants, the Bortrees. But he distinctly said, which of course was the law in the case, that that verdict did not settle the question of the ownership of the property. But Mr. Morss had failed to prosecute his suit with effect, and therefore there was a technical forfeiture of this replevin bond, whether he was the owner of the property, or whether he was not.

The sheriff, or the counsel for the Bortrees, had a judgment entered on this bond for the...