Automobile Securities Co. v. Swisshelm

Opinion by

Linn, J.,

This is an appeal from an order quashing a writ of replevin. Plaintiffs affidavit filed under section 8 of the Beplevin Act of April 19, 1901, P. L. 88 (amended by section 2 of the Act of March 19,1903, P. L. 39), was held insufficient because (1) it was not made by an officer of the corporation, and (2) it did not contain statements of fact showing the authority of the'agent who made it. For that conclusion the court relied on decisions defining what a sufficient affidavit of defense made for a corporation by an agent must contain. We perceive no controlling analogy between the two, nor does general consideration of the replevin act justify the order.

Section 8 as amended in 1903, P. L. 39, provides: “The prothonotary shall, in the first instance, fix the amount of bail and approve or reject the security offered. His action in either regard shall be subject to revision by the court or, in vacation time, a judge thereof at chambers. In order to determine the amount of bail, the pláintiff shall make an affidavit of the value of the goods and chattels, which value shall be the cost to the defendant of replacing them, should the issue be decided in his favor. The court, or in vacation time, a judge thereof at chambers may, upon motion, increase the amount of bail required; may require new bail, if for any reason the old bail has become insufficient, and may enter a non pros, against the party in default, if he has the goods and chattels, and its orders be not complied with, or may permit the substitution of bail for that already given and enter an exoneratur on the bail bond.”

The Act of 1901 corrected the anomalous condition of the law theretofore existing. There was no statute requiring a sheriff to take a bond from a plaintiff in replevin except in replevin of distress for rent, but the practice was established by decision in analogy to the requirements of section 11 of the Act of March 21, 1772, 1 Sm. L. 370; Morris on Replevin, 3d ed., p. 298. Until 1901 the sheriff was responsible for the sufficiency of the sureties in such bonds until the suit terminated, (Watterson v. Fuelhart, 169 Pa. 612) modified for Philadelphia County by the special Act of April 10, 1873, P. L. 776, and for Allegheny County by the Act of May 19, 1871, P. L. 986. The Act of 1901 changed all this and established the practice in replevin for the State. The purpose was to simplify and not to complicate.

We have examined the original record which shows that on August 14, 1919, John MacDonald, a member of the bar, as attorney for plaintiff, signed and filed a praecipe, directing the prothonotary to issue the writ. Below the praecipe and on the same paper appears plaintiff’s statement of claim also signed by MacDonald, “attorney for plaintiff.” In the body of the statement of claim, following the averment of detention, it is stated, “and thereupon the said plaintiff by John MacDonald their attorney complains......” No question is made about the sufficiency of the praecipe or of the statement of claim. On the back of the same paper appears an affidavit by John MacDonald, made before William B. Kirker, protbonotary of tbe court of Common Pleas of Allegheny County, in which it is stated that “......tbe goods and personal property enumerated in tbe within writ of replevin, is tbe property of tbe plaintiff herein, tbe defendant having no title thereto and tbe same is of tbe value of $250.” Tbe paper is marked filed August 14,1919, and MacDonald’s name is endorsed on tbe back as tbe attorney presenting it. Attached to tbe record and also dated August 14th is tbe writ of replevin as issued and it recites that plaintiff “has filed a bond, which has been approved, in tbe court of common pleas in tbe sum of $500 pursuant to tbe act of assembly approved tbe 19th day of April, A. D. 1901......” Tbe record also contains tbe bond of tbe plaintiff (with surety) purporting to be duly executed in its corporate name by its president under its corporate seal, attested by its assistant secretary; endorsed on tbe bond is tbe approval of William B. Kirker, protbonotary. Does it sufficiently appear that plaintiff corporation authorized MacDonald to make tbe affidavit on its behalf?

Tbe writ was not issued until after tbe bond was delivered to tbe protbonotary; when be issued it be bad before him tbe praecipe, statement of claim, affidavit quoted, and tbe filing and approval of the bond was recited in tbe writ itself. Tbe sheriff replevied and delivered tbe property to plaintiff on August 15,1919.

Tbe next step was taken on September 5, 1919, when defendant obtained a rule requiring plaintiff to show 'cause why tbe writ of replevin should not be quashed, tbe reason therefor, now pertinent, being stated as follows : “4th. Petitioner further alleges and avers that tbe writ of replevin in this case was issued without the plaintiff’s having, before the issuing of the writ, made and filed the affidavit required by the first and eighth sections of the Act of April 19,1901......”

Plaintiff answered that the “bond......was approved by the prothonotary......and that an affidavit of value of goods was sworn to by the plaintiff’s authorized agent, before writ' issued.” After argument on petition and answer, the writ was quashed.

An inspection of the record as it was constituted when the writ issued shows that the learned court erred in holding the affidavit inadequate. The plaintiff corporation could come into court only by attorney. Its affidavit could be made only by its officers or agents duly authorized. Authority may appear or be proved in various ways. When the prothonotary was requested to take MacDonald’s affidavit, he had before him the praecipe signed by MacDonald, as attorney for plaintiff, and the statement of claim so signed by Mm, and he knew him to be an officer of the court authorized to practice therein. We are not concerned in this appeal with the propriety of MacDonald’s making the affidavit. It was required to advise the prothonotary of the value of the goods in the first instance, to enable him “to determine the amount of bail,” (section 8). Plaintiff’s act in causing this bond to be delivered to the prothonotary by MacDonald as part of the process then consisting of the priecipe, statement and affidavit, was plaintiff’s declaration or publication of MacDonald’s agency and authority to make the affidavit of value and made it the plaintiff’s affidavit, as undeniably as if it had been accompanied by plaintiff’s letter of attorney specifically authorizing it. The prothonotary was justified in so accepting it.

As section 1 provides' “That before any writ of replevin shall issue out of any court of this Commonwealth, the person applying for said writ shall execute and file with the prothonotary of the said court a bond to the Commonwealth of Pennsylvania, for the use of the parties interested, with security in double the value of the goods sought to be replevied......” some one must ascertain the value; the affidavit states it ex parte, but not finally; the prothonotary may accept plaintiff’s statement but whether he does or not, his action may be revised immediately; “......the court, or in vacation time, a judge thereof at chambers, may upon motion increase the amount of the bail required; may require new bail if for any reason the old bail become insufficient ......” section 8. And, though section 8 also provides that the value stated by the plaintiff “shall be the cost to the defendant of replacing (the goods), should the issue be decided in his favor,” we have held that the affidavit need not contain those words: Guinn v. Vitte, 63 Pa. Superior Ct. 611. The possibilities which may confront a plaintiff in subsequent stages of an action of replevin are adequate to induce him to see that the value of the goods is honestly stated by him or on his behalf in the first instance, and if an inspection of the record made when the writ issues shows that plaintiff has made his own the affidavit of another, made on plaintiff’s behalf, it is sufficient'.

The order is reversed with a procedendo.