Citation Numbers: 167 A. 430, 110 Pa. Super. 16
Judges: OPINION BY BALDRIGE, J., July 14, 1933:
Filed Date: 4/27/1933
Status: Precedential
Modified Date: 1/13/2023
Argued April 27, 1933. This is an appeal from a judgment entered in an action of replevin for want of a sufficient affidavit of defense.
The plaintiff, a lessor, claims title and right of possession to certain restaurant fixtures, under a bailment lease with V.J. Panelas and E.A. Psirdukis, trading as the Walnut Street Lunch, due to their failure to comply with the terms of the lease. At the time of the issuance of the writ of replevin, the fixtures were in possession of, and title is now claimed by, William G. Heep. He obtained leave to intervene as defendant, and filed an affidavit of defense. After *Page 18
a motion was made for a judgment for want of a sufficient affidavit of defense, a supplemental affidavit of defense was filed. The defendant based his title and right of possession on a purchase, from Nathan Levy, of the property levied upon, prior to the issuance of the writ of replevin. The lessees in the bailment lease had defaulted in payment of their rent to the landlord. A distraint proceeding was issued, the goods were levied upon, and it is alleged they were appraised, and sold by the constable to Levy. Attached to the supplemental affidavit of defense was "a true and correct copy of said appraisement" of the chattels claimed by the plaintiff. In that exhibit, relied upon by defendant, it appears that no appraisement was actually made. The appellant contends that, notwithstanding this apparent omission, the legal presumption is that the constable's sale was had in accordance with law. Prior to an appraisement, there is no presumption as to the regularity of a constable's acts, but after the distress is made, and notice thereof is given, a favorable, but rebuttable, presumption arises: Mortgage B. L. Assn. v. Van Sciver et al.,
The constable's sale, by the defendant's own averments, not being in conformity with the statutory requirement, the title acquired by the purchaser at that sale, which was subsequently transferred to the appellant, was defective, and the plaintiff is entitled to a summary judgment: Peerless S.F.S. Co. v. Walsh and Boyle,
Judgment affirmed.