Kramer v. Wellendorf

• Decision Date: 28 October 1889
• Docket Number: 203
• Citation: 18 A. 525,129 Pa. 547
• Parties: SARAH KRAMER ET AL. v. B. E. WELLENDORF
• Court: Pennsylvania Supreme Court

18 A. 525

129 Pa. 547

SARAH KRAMER ET AL. v. B. E. WELLENDORF

No. 203

Supreme Court of Pennsylvania

October 28, 1889

Argued October 7, 1889

APPEAL BY DEFENDANT FROM THE COURT OF COMMON PLEAS OF JEFFERSON COUNTY.

No. 203 October Term 1889, Sup. Ct.; court below, No. 159 February Term 1884, C.P.

On January 25, 1884, Sarah Kramer and George Kramer, her husband, in right of said Sarah Kramer, brought trover against B. E. Wellendorf and H. Lewis, to recover a boiler smokestack, engine, etc., of the alleged value of $800. Issue.

At the second trial of the cause on May 14, 1888, the essential facts made to appear were as follows:

On August 21, 1880, George Kramer obtained a judgment by default against Hunter & Crawford for $42, before John T. Bell, a justice of the peace, and the same day an execution was issued thereon for the debt and costs, and a levy made by the constable upon the boiler, engine, etc., the property in dispute, as the property of Hunter & Crawford. On August 25th, the defendants in the judgment entered bail for an appeal, but did not take a transcript. On August 28th, the attorney for the plaintiffs in the judgment appeared before the justice and excepted to the appeal, on the ground that all the costs had not been paid. No notice to stay proceedings was given to the constable having the execution in his hands, and on August 30th, he sold the property levied upon to Sarah Kramer for $15, and on September 2d made return of the writ accordingly and paid the proceeds of sale to the justice. On September 2d, Hunter & Crawford had a writ of certiorari issued, and on September 3d, their attorney appeared before the justice, paid the costs, except those on the execution, "for the purpose of perfecting an appeal in this suit." The hearing was subsequently had on the certiorari, and on January 4, 1881, the proceedings before the justice were reversed because of irregularities and errors in the justice's proceedings.

The possession of the boiler, engine, etc., sold by the constable on the execution, was delivered to Mrs. Kramer, at the time of the sale, and on the trial of the present case the plaintiffs adduced testimony to show that in April, 1881, the defendant Wellendorf, alleging that he was acting in the interest of Hunter & Crawford, sold the property in dispute to H. Lewis, and assisted in delivering to Lewis the possession of it, against the protest of Mrs. Kramer and her husband.

At the close of the testimony five points for instruction were presented on behalf of the plaintiff, and twenty-one on behalf of the defendants.

The court, WILSON, P.J., submitted the case to the jury under instructions upon the material questions in controversy in accordance with the answers to the following points:

The plaintiffs' counsel has requested the court to instruct you:

1. That the judgment of George Kramer against William G. Hunter and G. W. Crawford, doing business as Hunter & Crawford, on docket of J. T. Bell, Esq., will support the execution; and it was the duty of the constable to make the sale, and the defendants standing by until after the sale, a good title passed to the plaintiff and the verdict of the jury should be for the plaintiff.

Answer Affirmed.

Counsel for defendant Wellendorf request the court to charge the jury:

9. That if on August 27, 1880, the said justice, in said case allowed an appeal, it is to be regarded in all respects as regular, and affording the defendants every right and protection of a regular and effective appeal until stricken off or set aside.

Answer: Refused.

17. That if after the execution was issued by the justice an appeal was taken from the judgment, of which appeal the justice failed to give the constable notice, while the execution in the constable's hands might be a protection to him in going on with it and making the sale, yet such sale would confer no title to the purchaser.

Answer: Refused.

The jury returned a verdict of not guilty as to H. Lewis, and of guilty as to B. H. Wellendorf, assessing the damages at $630. A rule for a new trial having been discharged, the defendant Wellendorf took this appeal, specifying that the court erred, inter alia:

1. In the answer to plaintiffs' point.

3, 7. In the answers to defendants' points.

Judgment affirmed.

Mr. Charles Corbet (with him Mr. M. M. Davis and Mr. Harry A. Hall), for the appellant.

Counsel cited: O'Donnell v. Mullin, 27 Pa. 199; Leonard v. Dillon, 76 Pa. 44; Womelsdorf v. Heifner, 104 Pa. 1; Beale v. Dougherty, 3 Binn. 434; Berry v. Baker, 1 Br. 224; Hastings v. Lolough, 7 W. 540; Caldwell v. Walters, 18 Pa. 79; Hecker v. Haak, 88 Pa. 238; Burd v. Dansdale, 2 Binn. 80; Gibbs v. Neely, 7 W. 305; Camp v. Wood, 10 W. 118; Herman on Executions, 255.

Mr. H. Clay Campbell, for the appellees.

Counsel cited: Breading v. Boggs, 20 Pa. 33; Yaple v Titus, 41 Pa. 195; Wilkinson's App., 65 Pa. 189; Hageman v. Salisberry, 74 Pa. 280; Billings v. Russell, 23 Pa. 189; McDonald v. Simcox, 98 Pa. 619; Stewart v. Stocker, 13 S. &...