National Cash Register Co. v. Berg

• Citation: 99 Pa.Super. 34
• Decision Date: 06 May 1930
• Docket Number: 24-1930
• Parties: National Cash Register Company, Appellant, v. Berg
• Court: Superior Court of Pennsylvania

99 Pa.Super. 34

National Cash Register Company, Appellant, v. Berg

No. 24-1930

Superior Court of Pennsylvania

May 6, 1930

Argued March 5, 1930.

Appeal by plaintiff, from order of C. P. Lackawanna County, January Term, 1926, No. 531, in the case of National Cash Register Company v. Emil Berg, Charles Rothman, I. G. Fasold, trading as the American Wood & Metal Products Company.

Replevin for recovery of cash registers. Before Newcomb, P. J.

The facts are stated in the opinion of the Superior Court.

By agreement the case was referred to W. W. Baylor, Esquire, as referee, who after hearing the evidence directed the prothonotary to enter a judgment for the intervening defendant. Subsequently, on exceptions to the referee's report, the court dismissed the exceptions and entered a judgment for the intervening defendant in the sum of $ 400.00. Plaintiff appealed.

Errors assigned, among others was the over-ruling of the plaintiff's exceptions to the referee's report.

James K. Peck and with him Ralph W. Rymer, for appellant. -- The words " Shall" and " May" are imperative and mandatory as used in the Act of March 27, 1772, cited Quinn v. Wallace, 6 Wharton 452; Thompson v White, 4 S. & R. 135.

Lee Stark, of Welles, Mumford & Stark, for appellee. -- A statute directing the mode of procedure by a public officer is in general deemed directory; a precise compliance is not essential to the validity of the proceeding unless so declared, cited: Erie City v. Willis, 26 Pa.Super 459.

Before Trexler, P. J., Keller, Linn, Gawthrop, Baldrige and Graff JJ.

OPINION

GRAFF, J.

Plaintiff instituted this action of replevin to recover two cash registers which had been leased by bailment lease to Thomaries, who had placed them in premises occupied by him as a tenant. The registers were distrained for rent by the landlord through a deputy constable. The levy and notice of distress was made and given November 5, 1925, and appraisement made upon November 12, 1925. Upon November 19, 1925, a public sale of the cash registers was made, and thereafter the plaintiff issued this action of replevin for said registers. No counter-bond was filed, and plaintiff retained possession of them. The case was referred to a referee, who directed an entry of judgment in favor of the intervening defendants, who had purchased the registers at the constable's sale. Exceptions filed to the referee's report were dismissed and the court below entered judgment in favor of the intervening defendants in the sum of $ 400, with interest from July 23, 1929, from which judgment the plaintiff filed this appeal.

The plaintiff raises four questions in its appeal. It first contends that the distress proceedings were illegal and void, for the reason that the oath administered to the appraisers was not in compliance with the Act of Assembly of March 21, 1772, 1 Sm. L. Section 1. It is sufficient to say the record discloses that the oath administered to the appraisers which is conclusive in this case, is in writing. An examination thereof discloses that said oath is in strict conformity with the Act of Assembly.

The plaintiff secondly contends that the entire proceedings were illegal and void, for the reason that the oath was administered by a deputy constable, instead of a sheriff under-sheriff, or constable, as designated in the act. The Act of Assembly provides " The person so distraining shall and may with the sheriff, under-sheriff or any constable in the city or county where such distress shall be taken (who are hereby required to be aiding and assisting therein), cause the goods and chattels so distrained to be appraised by two reputable freeholders . . . ." The Act of Assembly does not mention a deputy constable, and the question is fairly raised as to his authority to conduct distress proceedings. The right of a constable to appoint a deputy is recognized in Pennsylvania by section 113 of the Act of 1834, P. L. 537, and its supplements, which provides that a constable may appoint a deputy, after first having obtained the approval of the court of quarter sessions. A deputy constable may be appointed for various reasons, when shown to the satisfaction of the quarter sessions court. The constable so appointing executes his office by himself or by his deputy. No separate office of deputy constable exists under the law, and when a vacancy occurs in the office of constable, ipso facto the deputy ceases to exist as such. By long usage and custom deputy constables have performed all duties which constables are authorized by law to perform. The Act of March 20, 1810, 5 Sm. L. 161, Section 2, authorizes justices of the peace to issue a summons or warrant of arrest, directed " to the constable," and the Act of July 9, 1901, P. L. 614, Section 1, provides that...