Wunderly v. Leopold , 53 Pa. Super. 31 ( 1913 )

Opinion by

Morrison, J.,

This was an action of assumpsit upon a bond given by D. M. Leopold, trustee, etc., and A. E. Frantz to secure possession of a certain Cadillac automobile which was in the possession of and claimed by R. G. Wunderly, plaintiff in the present case, and which automobile had been levied upon by the sheriff of Northampton county on an execution issued on a judgment in favor of the Second National Bank of Nazareth, Pennsylvania, against R. G. Wunderly. We think the plaintiff’s theory and history of the case cannot better be presented than by copying here his declaration which is a concise statement of the facts and theories on which he rests his right to recover:

“The plaintiff, R. G. Wunderly above named, claims of the defendants, D. M. Leopold, trustee in bankruptcy of R. G. Wunderly Co., and A. E. Frantz, the sum of Two hundred and sixty ($260.00) dollars, with interest from the 27th day of July, 1911, upon the cause of action whereof the following is a statement:

“First: The said R. G. Wunderly was the owner of one Cadillac automobile No. 7454, engine No. 30,757 and had possession thereof at his residence in the Borough of Nazareth, Northampton County, Pa.

“Second: On the 3d day of July, 1911, by virtue of Fi. Fa. No. 11, July Term, 1911, issued at the instance of the Second National Bank of Nazareth the sheriff of Northampton. County levied upon the said Cadillac Automobile No. 7454, engine No. 30,757.

“Third: Immediately upon being served with the execution the said R. G. Wunderly notified the sheriff that he desired to have the exemption allowed by law appraised and set apart to him and filed a written notice to the sheriff of the said claim which is on file among the papers in said proceedings.

“Fourth: That on the 26th day of July, 1911, D. M. Leopold, trustee in bankruptcy of R. G. Wunderly Co., one of the defendants, claimed the automobile as the property of the R. G. Wunderly Co., a bankrupt. Whereupon the sheriff petitioned the court for rule on all parties interested to show cause why issue should not be framed to try the title to the said automobile and on the 9th day of August, 1911, the said rule was made absolute.

“Fifth: On the 27th day of July, 1911, Robert Person, sheriff of Northampton Co., summoned appraisers who being duly sworn did appraise and set apart unto the said R. G. Wunderly as a part of the $300.00 exemption allowed by law $260.00 of the value of the Cadillac automobile Serial No. 7454, engine No. 30,757 which appraisement was duly filed on the said day in the Court of Common Pleas of Northampton County.

“Sixth: On the 24th day of August, 1911, the said defendants, D. M. Leopold, trustee in bankruptcy of R. G. Wunderly Co., and A. E. Frantz, filed a bond in the Court of Common Pleas of Northampton County to No. 11, July Term, 1911, a true copy of which is hereto attached, conditioned that the said claimant shall at all times maintain his title to the goods and chattels and pay the value thereof to the party thereunto entitled, if the said issue shall not be determined in favor of the claimant, by virtue of which the said D. M. Leopold removed the said automobile from and out of the possession of the plaintiff.

“Seventh: That on the 9th day of October, 1911, upon the trial of the issue the said D. M. Leopold, claimant as aforesaid, failed to maintain his title to said goods and chattels, to wit, the said automobile, but upon said trial it was settled and adjudicated that the right, title and property in said automobile was in R. G. Wunderly, the present plaintiff, and not in said D. M. Leopold, claimant, the verdict being rendered against said claimant, whereby the condition in said bond was violated and said bond forfeited.

“Eighth: The plaintiff, R. G. Wunderly, by reason of the taking away of said automobile by the said D. M. Leopold has suffered damages as aforesaid in the sum of Two hundred and sixty ($260.00) dollars with interest from July 27th, 1911, the amount set aside to him as exemption out of the proceeds of said automobile, and to recover the same this suit is brought.” A copy of the bond was attached to the declaration and made a part thereof.

Immediately after the levy upon the automobile D. M. Leopold, trustee, etc., executed and delivered the bond upon which the present suit was brought which was also signed by A. E. Frantz, and Leopold took possession of the automobile and retained it. The sheriff having procured a rule for an interpleader under the provisions of the Act of May 26, 1897, P. L. 95, which rule was made absolute, and an issue framed between the parties, as stated in the declaration, and the issue being tried, the result was a verdict in favor of the defendant, the Second National Bank of Nazareth, Penna., and against the plaintiff, D. M. Leopold, trustee, etc., and judgment being entered upon the verdict, the legal effect thereof was not that the automobile was owned by the bank when it was levied upon, but that the bank had the right to recover the amount of its judgment out of the bond given by the plaintiff and A. E. Frantz, subject, of course, to the right of R. G. Wunderly to his $260 exemption which he claimed out of the proceeds of the sale of the automobile by the sheriff. But the plaintiff in the inter-pleader suit having taken the automobile and retained it the present plaintiff’s claim for his $260 exemption was necessarily thrown upon the bond. When the plaintiff was defeated in the interpleader suit he ought to have paid the $300 judgment against him into court, to be distributed according to law, instead of paying it to the Second National Bank of Nazareth, and his voluntary payment of the judgment to the bank could not prejudice the right of R. G. Wunderly, plaintiff, in the present suit, to recover the value of his exemption, if he was the owner of the automobile when the plaintiff in.the inter-pleader suit received it from the sheriff in exchange for the bond upon which the present action is founded.

A careful examination of the somewhat lengthy record, and the opinions of the court and the arguments of counsel leads us to the conclusion that the learned court below did not err in entering the judgment in the present case after the defendants had filed an answer, an amended and a more specific answer. We think the opinions of the court below of February 12, 1912, and of March 18, 1912, both filed in this suit, and which will be included in the report of this case, sufficiently vindicate the judgment in favor of the plaintiff for the amount of his exemption which would have come out of the sale of the automobile if the plaintiff in the interpleader suit, D. M. Leopold, trustee, etc., had not given the bond and taken the automobile.

The single assignment of error only raises the question of the legality of the judgment of the court below in favor of the plaintiff for his $260 exemption and interest thereon. We think this assignment should not be sustained and it is-dismissed and the judgment is affirmed.