Schuettler v. Maurer

• Decision Date: 23 April 1946
• Parties: Schuettler v. Maurer, et al., Appellants
• Court: Pennsylvania Superior Court

46 A.2d 586

159 Pa.Super. 110

Schuettler v. Maurer, et al., Appellants

Superior Court of Pennsylvania

April 23, 1946

Submitted March 13, 1946.

Appeal, No. 14, Oct. T., 1946, from order of Q. S Schuylkill Co., May T., 1945, No. 16, Misc. Docket No. 5 page 492, etc., in case of Charles Schuettler v. Alvin E. Maurer et al., County Commissioners, C. A. Graeff, County Controller and Elmer McSurdy, Treasurer.

Proceeding upon petition by plaintiff for return of money.

Order entered dismissing preliminary objections to jurisdiction of court, opinion by Curran, J. Defendants appealed.

G. Harold Watkins, Walter G. Treibly, Edgar Downey and Arthur E. Ricchiuti, for appellants.

P. B. Rhoads, for appellee.

Baldrige P. J., Rhodes, Hirt, Reno, Dithrich, Ross and Arnold, JJ.

OPINION

HIRT, J.

The question in this appeal is whether a quarter sessions court has jurisdiction to try title to $ 2,500 after it came into the hands of the county treasurer and was deposited by him in the general fund to the credit of the county, on the bare petition of one claiming ownership. This jurisdictional question was properly raised by defendants in the court below under the Act of March 5, 1925, P. L. 23, 12 PS 672, 673. An order adverse to the defendants, on this preliminary question, gives rise to this appeal.

The proceeding originated in plaintiff's petition, in which he averred: that state police officers raided 116 East Race Street in Pottsville on July 13, 1935, and took $ 2,500 from the pocket of petitioner's coat then hanging on the wall of one of the rooms on the premises; that the money taken is now in the treasury of Schuylkill County. Averring that the money taken was his, petitioner prayed for its return to him. On these, the only facts averred, the quarter sessions court was without authority to take jurisdiction of the question when raised on petition and rule as original process. Unless authorized by statute, "a rule is not properly original process in any case, but is auxiliary, and for the facilitating of jurisdiction already acquired." Short v. Board of Sch. Dist., 108 Pa.Super. 503, 165 A. 669; 2 Standard Pa. Practice, Motions and Rules, § 22.

We reach the same conclusion if we go outside the record, as did the lower court, and assume that the fund was seized in a raid on a gambling house. Money is subject to seizure, along with gambling devices if it is an integral part of the illegal gambling operation when seized. Rosen v. Supt Police Le Strange, 120 Pa.Super. 59, 181 A. 797. When gambling paraphernalia are seized, it becomes the duty of the confiscating officer to make a return in writing to the quarter sessions court setting forth a description of the gambling device or apparatus and the circumstances under which the seizure was made, and as to money (under the ruling of the Rosen case) that it, when seized, was in play or held as the stake to pay winners, or was otherwise earmarked or segregated so as to be identified as part of the gambling operation. Section 60 of the Penal Code of March 31, 1860, P. L. 382, 18 PS 1445. That section and the following section, 61, 18 PS 1446, were not repealed by the Penal Code of June 24, 1939, P. L. 872. Urban's Appeal, 148 Pa.Super. 101, 24 A.2d 756. Section 61 provides that no writ of replevin shall issue "nor shall any action be instituted for or on account of such seizure, until the court shall have first adjudicated upon the premises". The statutory procedure, indicated by the two sections of the Act of 1860 was intended to be exclusive to determine the legality of such seizure, as outlaw property, so long as the devices...