Nevil v. Heinke

• Decision Date: 04 May 1903
• Docket Number: 220-1902
• Citation: 22 Pa.Super. 614
• Parties: Nevil, Appellant, v. Heinke
• Court: Pennsylvania Superior Court

22 Pa.Super. 614

Nevil, Appellant, v. Heinke

No. 220-1902

Superior Court of Pennsylvania

May 4, 1903

Argued December 13, 1902

Appeal by plaintiff, from order of C.P. No. 3, Phila. Co.-1902, No 173, reversing judgment of the justice of the peace in case of George W. Nevil v. Charles A. Heinke.

Appeal from justice of the peace.

The facts appear by the opinion of the Superior Court.

Error assigned was order reversing judgment of justice of the peace.

Thomas A. Fahy, with him J. Albert Miller, for appellant.

Wayne P. Rambo, with him Ormond Rambo, for appellee.

Before Beaver, Orlady, Smith, W. W. Porter and W. D. Porter, JJ.

OPINION

BEAVER J.

Proceedings were commenced by petition, under the act of June 16, 1836 sections 105 et seq., to recover possession of premises sold under foreclosure proceedings of a mortgage given by one, Alberts, to the plaintiff. The defendant was summoned, appeared before the magistrate and made defense. Possession of the premises was awarded to the plaintiff and damages for detention assessed against the defendant. The magistrate entered judgment against the defendant and issued a warrant of restitution, whereupon the case was brought, by certiorari, to the court of common pleas, in which, upon hearing, the judgment of the magistrate was reversed.

The grounds upon which this reversal was based do not appear, as no opinion was filed. It appears, however, from the record and argument, that the defendant bases his defense upon two distinct grounds: First, that the petition to the magistrate was not in accordance with the provisions of section 106 of the act of 1836, supra, and, secondly, that the defendant was not summoned or made party to the scire facias upon the mortgage, as required by the 10th section of the Act of July 9, 1901, P. L. 614.

The method pointed out by the act of 1836 to secure possession of premises sold by the sheriff is a summary proceeding and is to be construed strictly. The 106th section of the act aforesaid requires the purchaser to set forth in his petition specifically three facts: 1. That he purchased the premises at a sheriff's or coroner's sale. 2. That the person in possession at the time of such application is the defendant, as whose property such real estate was sold, or that he came into possession thereof under him. 3. That such person in possession had notice as aforesaid of such sale and was required to give up such estate three months previous to such application.

The requirements of the first and third paragraphs are set forth in the petition in this case with sufficient particularity. As to the second, however, this is the allegation: " That, at the time said suit was instituted Charles A. Heinke was the tenant in possession of the above described premises and has continued in possession thereof up to the present time," but it is not alleged either that he was the defendant, as whose property such real estate was sold, or that he came into possession thereof under him. Whose tenant was he? Under whom was he in possession of the premises? This does not appear, as it certainly should appear under the distinct terms of the petition required by the act of assembly referred to.

The petition also alleges that the defendant " being so thereof in possession and a copy of the scire facias in the said suit having been duly posted on February 3, 1902, upon the above described premises, Charles A. Heinke became a party defendant in the said suit." The posting of a copy of the scire facias, however, did not make Heinke a defendant in the suit. The 10th section of the act of July 9, 1901 requires that " the plaintiff, in any writ of ejectment, in any writ of summons to recover upon a ground rent deed or to recover any sum charged upon real property by will or deed, in any writ of scire facias...