DocketNumber: Appeal, No. 240
Citation Numbers: 27 Pa. Super. 215
Judges: Beaver, Henderson, Lad, Mobbison, Morrison, Porter, Rice, Smith
Filed Date: 1/17/1905
Status: Precedential
Modified Date: 2/18/2022
Opinion by
Judgment was entered against the appellee before a justice of the peace for rent due upon a written lease, dated March 4, 1901. The transcript from the justice’s docket recites : “ wherein the defendant waived the benefit of the exemption laws of the State of Pa., Walter F. Sieger sworn on behalf of plaintiffs. Plaintiffs also offer in evidence said lease which is also made part of this record. And after hearing the full proofs of the plaintiffs on oath (defendant offering no proof), and the allegation of the parties, judgment publicly in favor of the plaintiffs for $77.13 and costs of suit.” After execution issued and returned “no goods ” a transcript of this judgment was entered in the Common Pleas of Lehigh County and a fi. fa. issued thereon to the sheriff of said county, who is the present appellant.
In pursuance of said writ the appellant levied upon the defendant’s personal property and a claim was at once presented to him, by the defendant, appellee here, for the benefit of the provisions of the Act of Assembly exempting property from levy and sale on execution, and requesting an appraisment of the said personal property, etc. Under the instructions of the plaintiffs in said writ of fi. fa. the sheriff, appellant in this suit, refused the request of the appellee for his exemption and
The appellants reason for disregarding the appellee’s claim for exemption is the above recital in the transcript of the justice, as to the waiver of the exemption laws, and the fact that the prothonotary, under direction of the plaintiff in that case, noted upon the fi. fa.: “ Please take notice of the waiver of exemption in transcript on which the above fi. fa. is issued.” It is urged by the counsel for appellant that this endorsement protected the sheriff even if in fact the defendant had not waived the benefit of the exemption laws in the lease referred to. Said lease contained the following language : “ And the said Emerson F. Schock, his executors and administrators, hereby agree that all the personal property on the premises shall be liable to distress, and also all personal property if removed therefrom shall, for thirty days after such removal, be liable to distress, and may be distrained and sold for rent in arrear: and the said Emerson F. Schock, his executors and administrators, hereby waive all right to the benefit of any laws now made, or hereafter to be made, exempting personal property from levy and sale for arrears of rent.”
The question for determination is whether the above waiver, of exemption applies merely in proceedings for the recovery of rent under the Landlord and Tenant Laws, or whether it applies generally to all debts for rent without, regard to the
We are clearly of the opinion that the learned court did not err in holding that the appellee was entitled to his exemption on the fi. fa. in the hands of the appellant, notwithstanding the waiver contained in the lease of March 4, 1901. This because the waiver was restricted to proceedings under landlord’s warrant, while the writ in the sheriff’s hands was upon an ordinary judgment.
But the learned counsel for the appellant contends strongly that the indorsement upon the fi. fa. protected the sheriff because he was not required to go back of that and inquire whether or not the defendant had waived the right of exemption. We cannot agree with this contention. In Beatty v.
In affirming the court below the Supreme Court (p. 362) used this significant language: “ The fact that the magistrate recited the waiver in his judgment is not material. The waiver was in'the lease and need not necessarily appear on the justice’s docket. That it was there does no harm.” The plain meaning of this is that when the defendant makes timely demand for his exemption the sheriff is bound to grant it unless he finds that it has been waived in the lease or contract. We understand the law to be that the magistrate can neither grant nor withhold from the defendant his right of exemption by any recital in the judgment. Undoubtedly the judgment is conclusive, where there is jurisdiction as to the amount thereof, but we do not think the law confers upon the magistrate the power to conclude the defendants right to exemption by anything set out in the judgment. In Williamson v. Krumbhaar, 132 Pa. 455 it is said: (p. 460) “ The sheriff’s duty was to set apart the property, unless a waiver or some other specific act of the defendant was brought to his notice which clearly, and without doubt, deprived the defendant of that right.”
This case further holds that “ the sheriff has no right to demand an indemnity from the defendant; for this, in most cases, would practically defeat the operation of the act of assembly which secures to him this bounty.” In this respect Tasker v. Sheldon, 115 Pa. 107, is practically overruled, as it was there held that the sheriff might be indemnified for refusing the defendant his exemption: See Moore v. Dunn and Fell, 147 Pa. 359.
The appellant cites Commonwealth v. McCoy, 8 Watts, 153; Diehl v. Holben, 39 Pa. 213; Harleman v. Buck, 30 Pa. 267; Barnett v. Reed, 51 Pa. 190; Am. & Eng. Ency. of Law, vol. 22, p. 529, etc., and Ricketson v. Commonwealth, 51 Pa. 155. An examination of these cases does not convince us that the sheriff was justified in disregarding the appellees claim of exemption, on account of the indorsement upon the writ, which was placed there by the prothonotary under direction of the plaintiffs’ attorney.
The assignments of error are all dismissed and the judgment is affirmed.