Hershey v. McLaughlin

• Decision Date: 23 May 1901
• Docket Number: 84-1900
• Citation: Hershey v. McLaughlin, 17 Pa.Super. 87 (Pa. Super. Ct. 1901)
• Parties: Hershey v. McLaughlin
• Court: Pennsylvania Superior Court

17 Pa.Super. 87

Hershey v. McLaughlin

No. 84-1900

Superior Court of Pennsylvania

May 23, 1901

Argued November 15, 1900

Appeal by defendants, from judgment of C.P. Lancaster Co., Aug. T 1897, No. 97, on verdict for plaintiff, in case of A. H Hershey, for use of Howard H. Walker v. J. F. McLaughlin and Ellis Brown.

Scire facias to ascertain amount due on a judgment entered on a replevin bond containing a clause authorizing entry of judgment. Before Livingston, P. J.

From the record it appeared that the property replevied was a horse, and that the bond on which suit was brought contained a clause authorizing confession of judgment.

Defendants offered to prove, as a set-off, that Howard Walker bought the horse spoken of in suit, and which is the basis thereof, on March 16, 1894, from Franklin Smith, and said Howard Walker gave his note with said J. F. McLaughlin as bail, dated March 16, 1894, payable eight months after date, for $ 92.00, in the Farmers National Bank of Oxford; that said Franklin Smith had the note discounted or collected at the bank, and said Howard Walker never paid anything on account of said note but neglected and refused to pay anything on account of it; that said J. F. McLaughlin, when the note was due and before the action in replevin was instituted and before the commencement of this suit, paid said note and obtained it from the bank with his own money.

Objected to by the plaintiff.

The Court: All this having taken place prior to the judgment in the replevin suit is disallowed and defendant excepts.

Defendants offered to prove by D. F. Magee, Esq., as a witness, that he offered a replevin bond, with said J. F. McLaughlin and Ellis Brown, defendants, as principal and surety, duly executed, which the sheriff, A. H. Hershey, Esq., refused to accept, and refused to execute the writ unless bond with surety was given with a clause with confession of judgment, when defendants furnished the bond in suit. This to be followed with proof that the form of replevin bond is not fixed by any rule of court.

Objected to by plaintiff. Disallowed. Defendants except.

Plaintiff offered in evidence the judgment entered in this bond to April term, 1897, No. 379.

Objected to by defendants because it is not such a judgment as recognized by the law. The sheriff is only authorized to take a replevin bond under the act of assembly. This has a clause of judgment by confession, which is not ordered by any rule of court or act of assembly. Admitted. Defendants except.

Verdict and judgment for plaintiff for $ 94.25. Defendant appealed.

Errors assigned were rulings on evidence, quoting the bill of exceptions.

Affirmed.

D. F. Magee and B. F. Davis, for appellants. -- A scire facias in the form and for the purpose used in the case at bar is an original action: 2 Troubat & Haly's Practice, p. 283, sec. 1916.

A defendant may plead to a scire facias and make as full a defense as he could upon a summons: Allen v. Reesor, 16 S. & R. 10; Hunt v. Gilmore, 59 Pa. 450; Plunkett v. Sauer, 101 Pa. 356; Hibert v. Lang, 165 Pa. 439; Gunn v. Dickey, 14 W. N.C. 274; Balsley v. Hoffman, 13 Pa. 602; Halfpenny v. Bell, 82 Pa. 128; Nixon v. McCrory, 101 Pa. 289; Gunn v. Dickey, 14 W. N.C. 274; Filbert v. Hawk, 8 Watts, 443.

The sheriff had no right to demand the bond in suit: Diller v. Wetzler, 10 Lancaster Bar, 9; Clark v. Morss, 142 Pa. 311.

W. U. Hensel, for appellee. -- One of the defendants on a scire facias upon a judgment cannot set off a note upon which he had brought suit in another county, which suit is pending and untried: Clark v. Morss, 142 Pa. 311.

A set-off cannot be pleaded in tort: Macky v. Dillinger, 73 Pa. 85; Moyer v. Loeb, 3 W. N.C. 95; Gogel v. Jacoby, 5 S. & R. 116; Brotherton v. Haslet, 5 S. & R. 334.

The surety in a replevin bond is answerable to the extent of the penalty for the value of the property, and also for the damages and costs. The value of the property, as set out in the replevin, is prima facie the measure of damages in an action on the bond, subject, however, to correction by parol evidence: Balsley v. Hoffman, 13 Pa. 602; 2 Brewster's Practice, pp. 929, 930, 931, 932; Com. v. Litvitz, 14 Pa.Super. 278; Gibbs v. Bartlett, 2 W. & S. 29; Stewart v. Wolf, 7 A. 165.

Before Rice, P. J., Beaver, Orlady, W. W. Porter and W. D. Porter, JJ.

OPINION

ORLADY, J.

The effect of the condition in the replevin bond given by McLaughlin was that he should prosecute his suit with effect and without delay; and in the event of that trial being adverse to him, then to pay the damages assessed as the value of the property affected by the writ: Commonwealth v Litvitz, 14 Pa.Super. 278. When he abandoned his claim on the trial of the action of replevin and suffered a voluntary nonsuit, it was a judgment against him, that determined the title of the property...