Commonwealth v. Lintott

Decision Date21 April 1919
Docket Number245-1918
Citation71 Pa.Super. 401
PartiesCommonwealth v. Lintott et al., Appellants
CourtPennsylvania Superior Court

Argued November 21, 1918

Appeal by defendants, from judgment of Municipal Court of Philadelphia, No. 492, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Commonwealth of Pennsylvania to the use of Louis I. Bellow v Francis J. Lintott, Anton Smoluk and Michael Kaleda.

Assumpsit on counterbond in replevin.

Rule for judgment for want of a sufficient affidavit of defense.

Opinion of the Superior Court states the case.

The court made absolute the rule for judgment for want of a sufficient affidavit of defense.

Error assigned was the order of the court.

Affirmed.

C Oscar Beasley, for appellant, cited: Commonwealth v. King et al., 18 Dist. Rep. 404; Balsley v. Hoffman, 13 Pa. 603; Fahey v. Howley, 22 Pa.Super. 472; Skinner v. Chase, 6 Pa.Super. 279; Aber's Petition, 18 Pa.Super. 110; Jennings v. Hare, 104 Pa. 489; Snyder v. Frankenfield, 4 Dist. R. 767.

No appearance and no printed brief for appellee.

Before Orlady, P. J., Porter, Henderson, Head, Trexler and Williams JJ.

OPINION

HEAD, J.

The learned court below made absolute a rule for judgment for want of a sufficient affidavit of defense, and from that order comes this appeal.

The plaintiff, sometime ago, had instituted an action of replevin in the Court of Common Pleas of Philadelphia County to recover possession of certain personal property. As a result of that action he finally obtained a money judgment against Lintott, the principal in the bond, upon which the present action is founded. That judgment remains unopened, unappealed from, and unreversed. It, therefore, finally adjudicated the right as between the plaintiff and the particular defendant named.

In the action of replevin referred to, the defendant chose to give a counterbond and retain the possession of the property sought to be recovered. In that bond the two remaining defendants in the present action became sureties for the principal defendant. The plaintiff having, as stated, obtained a final judgment against the principal in the bond, then brought the present action in the Municipal Court founded on the said judgment, to recover from the sureties the amount thereof. An affidavit of defense was filed by the sureties which, upon consideration, was deemed insufficient by the learned court below.

We are unable to escape the conclusion that the action of the court below was right and proper. The reasons for this conclusion or some of them at least, may be briefly set forth. The whole of the defense advanced is nothing more than an attempt on the part of the sureties to avail themselves of the benefit of a certain claim which, as they allege, their principal had against the plaintiff in the action. It nowhere appears that such claim, if any there be, was ever assigned or transferred to the sureties. If it existed at all at the institution of the present action, it was the property of the principal defendant and still remains...

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