Commonwealth v. One Five-Passenger Overland Sedan
| Decision Date | 22 April 1927 |
| Docket Number | 160-1927 |
| Citation | 90 Pa.Super. 376 |
| Parties | Commonwealth of Pennsylvania v. One Five-Passenger Overland Sedan, Appellant |
| Court | Pennsylvania Superior Court |
Argued March 15, 1927
Appeal by Howland Securities Company from decree of Q. S. Butler County-1926, No. 11, in the case of Commonwealth of Pennsylvania v. A Five Passenger Overland Sedan.
Petition for return of automobile. Before Henninger, P. J.
The facts are stated in the opinion of the Superior Court.
The court directed that the automobile be forfeited to the Commonwealth and that it should be sold according to law. Howland Securities Company appealed.
Error assigned was the judgment of the court.
Affirmed.
James M. Galbreath, of Galbreath & Galbreath, for appellant -- The chattel mortgage constituted a contract between the parties which was as valid in Pennsylvania as a contract is in Ohio but without the right of lien. The appellant had the right of possession of the automobile and its right arose prior to the seizure: Harlan v. Harlan, 15 Pa. 513; Burns v Cooper, 31 Pa. 426; Commonwealth v. One Ford Truck, 85 Pa.Super. 194.
Thomas W. Watson, District Attorney, for appellee.
Before Porter, P. J., Henderson, Trexler, Keller, Linn, Gawthrop and Cunningham, JJ.
This is a proceeding for the condemnation of an automobile seized while in the possession of one Pete Maker who was then using it for the transportation of intoxicating liquor. Having been arrested and indicted for the offense, Maker pleaded guilty in the Court of Quarter Sessions of Butler County. Subsequently the district attorney filed his petition for the condemnation of the automobile under the provisions of the Act of March 27, 1923, P. L. 34. A few days later the Howland Securities Company, a corporation doing business in the State of Ohio, presented its petition to the Court of Quarter Sessions for an order directing the return of the automobile to it for the reason that it held a chattel mortgage on the automobile, given by George Kocsis and Steve Stramsak in the State of Ohio while the automobile was there, to Louis Vargo to secure the payment of a promissory note for $ 546.23 given on a deferred payment of that amount for the car, which mortgage was assigned by Vargo to the Securities Company, a balance of $ 364.12 remaining due at the time of the seizure and that in violation of the terms of the chattel mortgage, the automobile was removed to the State of Pennsylvania without the permission of the petitioner and was used for the transportation of intoxicating liquor in Pennsylvania without the consent or knowledge of the petitioner, and in violation of a stipulation of the chattel mortgage, as a result of which violation and in conformity to the terms of the mortgage, the petitioner became immediately entitled to the possession of the automobile. Evidence was offered at the hearing on the petition to show the transfer of the mortgage to the petitioner and to inform the court that the petitioner neither authorized the use of the car nor had knowledge of such use until after the seizure. The trial judge refused the application to return the car to the Securities Company and entered an order of condemnation pursuant to the provisions of the statute, from which action we have the pending appeal. The appellant does not rely on a lien secured by the mortgage, but on that provision of it granting a right to the mortgagee to take immediate possession of the chattel in the event of a violation of the prohibition above referred to and other defaults recited in the mortgage. The petitioner is not and never was the owner of the car and the right asserted is not as owner or bailee, but by one having a contract right of possession which it is claimed by the learned counsel for the appellant is recognized in Paragraph 6, of Section 11, of the Act referred to. It is there provided that " any person claiming the ownership of or right of possession to any intoxicating liquor, vehicle, team, conveyance, craft or other property, the disposition of which is provided for in this section, may, at any time prior to the sale thereof, present his petition to the court, alleging his lawful ownership thereof or right of possession thereto." The right relied on is given to a holder of the mortgage if the mortgagor shall fail to perform and comply with any of the terms and conditions of the mortgage to be performed by the mortgagor, in which case " all of...
To continue reading
Request your trial
-
Com. v. One 1958 Plymouth Sedan
...165 Pa.Super. 1, 67 A.2d 655; Commonwealth v. One 1939 Cadillac Sedan, supra) but a civil proceeding in rem (Commonwealth v. One Five-Passenger Overland Sedan, 90 Pa. Super. 376) and is directed to the confiscation of the property itself on the theory that the property is the The statute, u......
-
Commercial Credit Corp. v. State, 355
...Pontiac Coach Automobile, 55 S.D. 8, 224 N.W. 176 (1929). The second theory was rejected by the court in Commonwealth v. One Five Passenger Overland Sedan, 90 Pa.Super. 376 (1927) because: (1) 'the vehicle became subject to forfeiture at the same time the * * * (lienor's) right of possessio......
-
Commonwealth v. One Dodge Sedan
... ... forfeiture and condemnation are absolute except as the ... statute has provided otherwise: Commonwealth of ... Pennsylvania v. One Five-Passenger Overland Sedan, 90 ... Pa.Super 376, 382 ... We find ... in this statute no provision by which there is an exemption ... from the ... ...
-
Commonwealth v. One Essex Coupe
...bailor," and that an assignee of a bailor is not within the class. Two cases, Com. v. Studebaker Coupe, 86 Pa.Super 532, and Com. v. Overland Sedan, 90 Pa.Super 376, are on as sustaining its position. As we view those cases, they are not authority for the proposition of the Commonwealth. Bo......