Liquid Carbonic Co. v. Truby

• Decision Date: 11 October 1909
• Docket Number: 135-1909
• Citation: 40 Pa.Super. 634
• Parties: Liquid Carbonic Company, Appellant, v. Truby
• Court: Pennsylvania Superior Court

40 Pa.Super. 634

Liquid Carbonic Company, Appellant, v. Truby

No. 135-1909

Superior Court of Pennsylvania

October 11, 1909

Argued May 11, 1909

Appeal by plaintiff, from judgment of C.P. Armstrong Co.-1907, No 125, for defendants non obstante veredicto in case of The Liquid Carbonic Company v. Anna M. Truby and E. E. Truby Administrators.

Replevin for a soda fountain. Before Patton, P. J.

At the trial it appeared that plaintiff had leased the soda fountain in question to W. M. Weiss, the tenant of a drug store owned by D. A. Goldman. Goldman entered judgment on a warrant of attorney in his lease for rent in arrears and issued a fieri facias under which the soda fountain was sold. Subsequently the purchaser at the sheriff's sale sold it to W. J Truby. Truby died and his administrators were substituted in his place.

Verdict and judgment for plaintiff for $ 666. Subsequently the court entered judgment for defendants non obstante veredicto.

Error assigned among others was in entering judgment for defendants non obstante veredicto.

Harry C. Golden, with him H.L. Golden, for appellant. -- In the case of Schock v. Waidelich, 27 Pa.Super. 215, and also in the case of Mitchell v. Coates, 47 Pa. 202 it is clearly pointed out that there is a distinction between a distress for rent, and an execution for rent. In these cases, it is shown, beyond any question of doubt, that the incidents of a distress for rent do not attach to an execution for rent.

On the argument of defendant's motion for judgment non obstante, plaintiff was simply asking that judgment be entered on the verdict. Even conceding, for the sake of argument, but not as a fact, that plaintiff raised a new legal question at this time, it was not too late. The record of the court below was not yet complete. If a new legal question was raised by plaintiff, upon the argument of defendants' motion for judgment non obstante, which we deny as a fact and the court below fully considered and passed upon this question in entering judgment, the court's decision, if wrong, and if an exception has been taken to it by appellant, is reversible error: Dalmas v. Kemble, 215 Pa. 410; Buehler v. Rapp, 2 Woodward's Decisions, 443.

J. W. King, with him A. L. Ivory, for appellees. -- If legal questions that might have been raised are not raised at the trial it is too late to raise them on appeal: Herstine v. R. R. Co., 151 Pa. 244; Danley v. Danley, 179 Pa. 170; Fox v. Fox, 96 Pa. 60; Burkholder v. Stahl, 58 Pa. 371; Johnson v. Watson, 157 Pa. 454; Gorman v. Bigler, 8 Pa.Super. 440.

The landlord had concurrent remedies: Snyder v. Kunkleman, 3 P. & W. 487; McComb's App., 43 Pa. 435; Grant & McLane's App., 44 Pa. 477.

Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.

OPINION

RICE, J.

The verdict of the jury in favor of the plaintiff implies a finding that the plaintiff, the owner of the soda water fountain in dispute, had given notice to the landlord that the chattel was leased or hired, as the Act of April 28, 1899, P. L. 117, requires. But upon the defendants' motion for judgment non obstante veredicto under the Act of April 22, 1905, P. L. 286, the court held that the act of 1899 is unconstitutional, and that as the judgment under which the chattel was sold was for rent, a good title passed, and therefore entered judgment for the defendant. We are not at present convinced that the opinion of the court upon the question of the constitutionality of the act of 1899 is erroneous; but in the view we take of the other feature of the case it is unnecessary to express a more decided opinion upon that question.

The common-law rule that whatever goods and chattels the landlord finds upon the demised premises, whether they belong in fact to the tenant or a stranger, are distrainable by him for rent in arrear is, as its terms indicate, part of the law of distress, not of execution. But a landlord could not distrain goods which were in custody of the law, and it is still so. To meet this exception to the general rule the English statute of 8th Anne, ch. 4, provided, for the protection of the landlord, that goods on the demised premises should not be taken in execution unless the creditor pay the landlord the arrears of rent before they were removed, not exceeding in the whole the rent of a single year due at the time of the levy; " and our statute is nearly the same, the principal difference being that with us the year's rent is paid out of the proceeds of the sale without regard to the removal of the goods:" Pierce v. Scott, 4 W. &amp S. 344. The statute here referred to is the Act of June 16, 1836, P. L. 755, secs. 83 and 84. The first of these sections provides, that goods taken in execution, and liable to the distress of the landlord, shall be liable to the payment of the rent due at the time of taking such goods in execution; and the next directs that, after the sale of such goods, by the officer, he shall pay out of the proceeds the rent so due. Speaking of these provisions it has been held: " It cannot be doubted that the object of these provisions was to make the landlord amends for taking away his power of distress by a judicial sale of the tenant's goods liable...