L. Strouse & Co. v. Bard ( 1898 )

Opinion by

Beaver, J.,

The question in this appeal arises ■ under the provisions of the Act of May 26, 1897, P. L. 95, “ relating to proceedings where goods or chattels have been levied upon or seized by the sheriff and claimed to belong to others than the defendant in the execution or process.” Under the provisions of section 10 of said act, “ the courts of common pleas may make general rules governing the proceedings under this act not inconsistent herewith,” in accordance wherewith the courts of common pleas of Allegheny county adopted certain rulés, numbered from 133 to 137 inclusive, printed in the appellant’s paper-book. Said rules are not at variance with the provisions of the act above referred to. Rule 134 provides : “ If the parties or either of them fail to appear and answer the rule (obtained upon the application of the sheriff) under oath within five days after the' service thereof, the rule shall be discharged and if the default is made by the plaintiff alone the officer shall release the property claimed, otherwise he shall proceed with the execution.”

The plaintiff in the execution appeared and filed his affidavit within five days as prescribed by this rule. The claimant, who accepted service of the rule January 4, 1898, did not file her affidavit until the 12th of the same month. No reasons are given by the court for the discharge of the rule to show cause, but it is stated by the appellant that the ground upon which the rule was discharged was the failure of the claimant, who is the appellant, to file her affidavit within the time specified by the rule above referred to. It would seem, from an examination of the record, that this was doubtless the case, inasmuch as the affidavit alleges facts which, if they had been set forth at the proper time, would perhaps have entitled the claimant to an issue.

A careful examination of the rules adopted by the court for carrying into effect the provisions of the sheriff’s interpleader act, hereinbefore referred to, leads us to the conclusion that the said rules are not only in harmony with the provisions of the act but are such as will facilitate the disposition of cases thereunder. Whether the appellant made manifest to the court any reasons for her failure to comply with the rules relating to this subject the record does not show. As the recordstands, we have a plain violation of the rules of court by the appellant. Admitting that the court below had the right to suspend its own rules or to condone their violation, upon proper cause shown, its unwillingness to do so is an exercise of discretion with which an appellate court will not interfere.

The provisions of the procedure act of May 25, 1887, relating to the time within which affidavits of defense are to be filed, have no possible application to the question under consideration.

It is possible that the claimant, the appellant here, presented a case in her affidavit which had merit and would have received favorable consideration, if it had been brought to the attention of the court within the time limited by the rule. Having failed to do this, however, we are not disposed to interfere with the action of the court in reference thereto.

The decree is affirmed.