Keystone Coal Co. v. Williams , 216 Pa. 217 ( 1907 )

Opinion by

Mr. Justice Stewart,

By the execution of a writ of habere facias possessionem, certain property claimed by appellant to be personalty, and to belong to him as trustee in bankruptcy of the defendant in the writ, passed into the hands of the appellee. It included railroad tracks, chutes, mine tracks, mining machines, air tanks, air pipes, pumps and a number of other articles used in connection with mining operations. It was recited both in the confession of judgment by warrant of attorney in the action of ejectment, and in the writ under which premises and property were delivered over to the plaintiff, that these enumerated articles were included in plaintiff’s claim for which recovery was sought. Because of this recital and demand in the confession and writ, proceedings were commenced in the court below to have the judgment and writ set aside, so far as either related to the disputed property. In answer to the rule granted, the plaintiff denied the defendant’s ownership of the property, and averred that it constituted part of the estate which was the subject of the ejectment action, and as such passed with the estate. The court proceeded to consider and pass upon the issue thus raised, and, concluding that the contention of the plaintiff was correct, discharged the rule. This appeal followed.

The case shows a clear misapprehension as to the effect of the court’s action; just as the original proceeding shows a misapprehension as to the effect of the recitals in the confession of judgment and in the writ. If in point of fact and law the property was personalty, neither judgment, writ nor sheriff’s return could make it anything else. If personalty, it could not be subject to lien except by execution;' and the judgment in the case affords no basis for any process by which it could be seized except for costs, and such process was not attempted. The writ of habere facias possessionem could not, by anything the plaintiff might do, be enlarged to include anything but the premises, the right of possession of which was adjudged to be in the plaintiff. The delivery to the plaintiff of the premises recovered in the ejectment, was no delivery in law of the personal property upon the premises. Such property with respect to its ownership remained as before. If it belonged to the appellant, no matter how, whether by purchase by the lessee whose estate he represents, or by agreement between the latter and his lessor, his right to recover the same through a common-law action remained unaffected by anything that was done. With the issue attempted to be raised by the appellees’ answer, the court had nothing to do. The proceeding is not one in which the ownership of the property could be adjudicated; and the findings of the court with respect to it are nugatory. We do not feel called upon to review further the action of.the court in discharging the rule, since in no possible aspect could such refusal work prejudice to the appellant. If the latter wants to assert ownership to the property, it may do it in the one way that was open before this proceeding was begun, unprejudiced by anything in the record.

The appeal is dismissed, at the costs of the appellant..