Gardner v. Keihl

• Decision Date: 15 July 1897
• Docket Number: 85
• Citation: 37 A. 829,182 Pa. 194
• Parties: J. K. Gardner and W. H. Hyde, Surviving Partners as Hall, Gardner & Co., Appellants, v. Jesse Kiehl, Sheriff
• Court: Pennsylvania Supreme Court

37 A. 829

182 Pa. 194

J. K. Gardner and W. H. Hyde, Surviving Partners as Hall, Gardner & Co., Appellants, v. Jesse Kiehl, Sheriff

No. 85

Supreme Court of Pennsylvania

July 15, 1897

Argued May 3, 1897

Appeal, No. 85, Jan. T., 1897, by plaintiffs, from order of C.P. Elk Co., Sept. T., 1894, No. 47, making absolute a rule to quash writ of summons. Reversed.

Motion to set aside summons.

A rule was granted upon the following motion.

And now, August 6, 1894, Jesse Kiehl, the defendant above named by W. W. Ames, his attorney, appearing specially for the purpose of making this motion, moves the court to quash or set aside the writ of summons served upon him in the above stated case, for the following reasons:

1. The said defendant now is, and at the time the cause of action in this case arose was, the duly elected, qualified and acting sheriff of Clarion county, in the state of Pennsylvania.

2. This action is founded upon an alleged trespass committed by the defendant while acting in his official capacity of sheriff of Clarion county, as aforesaid, in levying upon and selling certain personal property in said county as the property of one W. W. O'Neil, Jr., under and by virtue of certain writs of fieri facias issued out of the court of common pleas of said county of Clarion to cases Nos. 31, 35, 36 and 37 of August term, 1893, of said court, wherein G. W. Arnold president, in trust for the First National Bank of Clarion, Pa., Rachel K. Pollard, S. Win Wilson and the Clarion Hardware Co., respectively, were the plaintiffs, and the said W. W. O'Neil, Jr., was the defendant. It being alleged by the plaintiffs in this case that a part of the said personal property so levied upon and sold as the property of the defendant in said writs of fieri facias, to wit: the said W. W. O'Neil, Jr., was not the property of the said O'Neil, but was the property of the said plaintiffs; wherefore, they, the said plaintiffs, bring this action.

3. That the judgments, writs of fieri facias and proceedings had thereon as aforesaid, under and in virtue of which the said defendant justifies his action in making sale of the personal property as aforesaid, are the records, etc., of the said court of common pleas of Clarion county, and the same are material and necessary, and will be required as evidence in making his defense to this action.

4. That in the circumstances the defendant is advised by counsel and believes that this is not a transitory, but a local action, and can only be brought in the court of common pleas of the said county of Clarion.

5. That to permit said plaintiffs to bring this action in the said county of Elk would be in contravention of the convenience and policy of the state, in that public officers should be permitted to remain at home in performance of duties local in their nature, and not dragged away from their offices and duties to run over the state at the call of individual suitors.

6. That the said plaintiffs, on or about April 24, 1893, brought suit in the said court of common pleas of Clarion county against this defendant, to case No. 57 of August term, 1893, for the same cause of action as the present suit, which said first mentioned action is at issue, and was pending and undetermined at the time the present action was brought against him.

7. That the costs amounting to a large sum, incurred in said action brought in the said court of common pleas of Clarion county aforesaid, were not paid or discharged at the time of bringing the present action, and the same still remains due and unpaid.

A stipulation was filed of record by counsel that the averments of the petition be taken as true.

The court made absolute a rule to set aside the summons.

Error assigned was the order of the court.

Judgment reversed and writ reinstated.

Harry Alvan Hall, with him G. A. Jenks, F. J. Maffett and B. J. Reid, for appellant. -- A fi. fa. is no protection to the sheriff or constable for levying on the goods of a stranger: McMichael v. Mason, 13 Pa. 214; Mollison v. Bowman, 3 Clarke, 283; Elder v. Morrison, 10 Wend. 128; Shipman v. Clark, 4 Denio, 446; Bell v. Oakley, 2 M. & S. 259; Parton v. Williams, 3 B. & Ald. 336; Megee v. Beirne, 39 Pa. 50; Rothermel v. Marr, 98 Pa. 285; Matthews v. Densmore, 109 U.S. 216.

At the argument below, 1 Chitty Pl. *277, *278, was cited to show that actions against public officers are local, but it there appears that certain acts of parliament so provided. One of them, 21 Jac. I., c. 12, sec. 5, was never adopted in Pennsylvania (see Report of Judges, 3 Binn. 623), and the others, 23 Geo. III., and later statutes, being after the Revolution, were never in force here: Mostyn v. Fabrigas, Cowp. 161.

Authorities showing that actions against municipal corporations are local have no application. They do not migrate and must, perforce, be sued where they are found: Wright v. Guier, 9 Watts, 179; Smith v. Bull, 17 Wend. 324.

A sheriff may be sued out of his county for misfeasance in office: Foster v. Baldwin, 2 Mass. 569; French v. Judkins, 7 Mass. 229; Pearce v. Atwood, 13 Mass. 324; Jones v. Pemberton, 7 N.J.L. 350; Griffith v. Walker, 1 Wils, 336; Glen v. Hodges, 9 Johns. 67; Buck v. Colbath, 3 Wall. 334; McKee v. Rains, 10 Wall. 25.

Actions for torts to the person or to personal property are transitory, though the cause of action arose in another state or country: Ackerson v. Ry., 31 N.J.L. 310; McKenna v. Fisk, 1 How. 241; Dennick v. C.R.R., 103 U.S. 11; Oliphant v. Smith, 3 P. & W. 181.

A plea of lis pendens must aver that the former suit remained pending and undetermined at the time of plea pleaded. A plaintiff may discontinue a former action after a plea in abatement, and reply that there is no such action pending: Toland v. Tichenor, 3 Rawle, 320; Findlay v. Keim, 62 Pa. 112.

On the whole we submit that the plaintiffs had a legal right to maintain their suit in Elk county, and that it was error to set aside their summons. It was an order in the nature of a final judgment putting an end to the case, and is of course reviewable here: Pontius v. Nesbit, 40 Pa. 309; Feagley v. Norbeck, 127 Pa. 238.

W. W. Ames, with him C. H. McCauley, for appellees. -- The plaintiffs by bringing their action in Clarion county elected their court, and the case having been put at issue, the defendants acquired rights which plaintiffs were bound to respect and the court protect: Mechanics' Bank of Phila. v. Fisher, 1 Rawle, 341.

The action is local. It is ordained by the statutes of 21 James I, ch. 12, that all actions brought against any officers of justice, shall be laid in the county where the acts are committed: 10 Bacon's Abridgment, 369, "Venue"; Jacob's Law Dictionary, Tomlins' ed. vol. 2, "Venue"; Stiles v. Coxe, 1 Vaughan, 111.

The statute of James I is not included in the list of English statutes reported by the judges to be in force in Pennsylvania in their report in 3 Binney, 595; but so far from this fact being conclusive, it never has been pretended that this report of the judges was a complete list of English statutes in force in Pennsylvania; it did not purport to be such a list, and many statutes not therein mentioned subsequently have been recognized as being part of the law of this state: Warren v. Steer, 118 Pa. 529; Koons v. Seward, 8 Watts, 388.

The usage and practice of the courts in recognizing statutes is sufficient to establish their validity: Respublica v. Mesca, 1 Dallas, 73.

In Lamson Consolidated Store Service Co. v. Speir, 22 Abb. N.C. 355, it was held that where a cause of action against a sheriff arose out of an act done in performance of his official duty, he will not, although others be sued with him, be deprived of his right to a trial in the county whose officer he is, and he is entitled to have a cause of action begun elsewhere removed there: Wintjen v. Verges, 10 Hun, 576; Cowen v. Quinn, 13 Hun, 344; Roach v. O'Dell, 18 Week. Dig. 204; People v. Kingsley, 8 Hun, 233; Graham v. Smith, 62 Mich. 147; Clay v. Hoysradt, 8 Kan. 58; Bank of Kentucky v. Harrison, 1 Bush, 384; Foster v. Wade, 4 Bush, 628; Wilson v. Rich, 5 N.H. 454; State v. Steele, 33 La. Ann. 910; Seeley v. Birdsall, 15 Johns. 267; Hull v. Southworth, 5 Wood. 265.

An action against a public officer for an act done virtute officii must be tried in the county where the cause of action arose, unless changed for causes specified in the statute: People v. Hayes, 7 How. Pr. 248; Porter v. Pillsbury, 11 How. Pr. 240; Oil City v. McAboy, 74 Pa. 251; Beeson v. Com., 13 S. & R. 248; Jones v. Pemberton, 2 Halsted, 350; Griffith v. Walker, 1 Wilson, 336.

Before STERRETT, C.J., GREEN, McCOLLUM, MITCHELL and DEAN, JJ.

OPINION

MR. JUSTICE MITCHELL:

It is to be regretted that the court below did not give us the benefit of its reasons for quashing the writ. Two grounds are set up by the defendant, first, that plaintiffs had a suit pending and at issue in Clarion county for the same cause of action at the time this suit was brought, and secondly, that the cause of action is local and not transitory.

As to the first ground the judgment must be...