Renner v. Stephens

Opinion by

Linn, J.,

Tbis is an appeal from an order quashing a writ of re-plevin at tbe conclusion of plaintiff’s case during a trial on tbe merits. Appellant brought replevin for a car, averring title and right of possession in him and its unlawful detention by defendant. Defendant filed a counter-bond and an affidavit of defense denying plaintiff’s title and averring title in himself by purchase from one Staggers. Tbe parties went to trial on tbe issue so made. Appellant showed that be bad purchased tbe car from one Hart and had delivered it to Staggers for repair; that Staggers had repaired it and had demanded repair charges so excessive that appellant had refused to pay them; that Staggers without notice had then sold and delivered the car at private sale to defendant who paid the amount of the repair bill and who knew when he bought it that “it was John Benner’s car.” At the conclusion of plaintiff’s evidence, the court granted a motion made by defendant’s counsel “to quash the writ,” saying, “In the court’s opinion the sale of the automobile by Staggers to the present defendant in this case was simply a substitution; that the ownership of the car still remains in the plaintiff subject to the same conditions it was while it still remained in the custody of Staggers the bailee. And for these reasons the court sustained the motion to quash the writ in this case.”

We cannot sustain the order. There is no authority to quash the writ in such circumstances; plaintiff had complied with the Act of April 19, 1901, P. L. 88, in obtaining the writ; it was duly served; defendant filed a counterbond and retained the car; plaintiff filed his declaration and defendant his affidavit of defense; the evidence was heard on the trial of the issue so raised in accord with the provisions of the Replevin Act: Drumgoole v. Lyle, 30 Pa. Superior Ct. 463, 467. That issue should have been tried. Staggers of course had a lien for repairs: Saxton v. Gemehl, 72 Pa. Superior Ct. 177, and if the lien is in the case, as to which we need now express no opinion, section 6 of the Replevin Act provides what may be done: Young v. Couche, 52 Pa. Superior Ct. 592, 596.

The judgment is reversed and a new trial awarded.