Mausel v. New York, Chicago & St. Louis Railway Co. , 171 Pa. 606 ( 1895 )

Opinion by

Mr. Justice McCollum,

Debby Mausel obtained a judgment in the court of common pleas of Erie county against the New York, Chicago & St. Louis Railway Company, and by virtue of a writ of fieri facias issued thereon levied upon, and advertised for sale, its roadbed, right of way, depots, grounds, sidings, etc., in said county, together with its franchises. The case is now before us on the appeal of the defendant company from an order of the court below discharging a rule to show cause why the proceedings on the fi. fa. should not be stayed or set aside. As the record stands the material question to be considered is that which is raised by the 2d and 5th specifications of error. It is obvious that the levy in this case was not warranted by the writ on which it was made and that the court below should have set it aside on the motion of any party injuriously affected by it. That the defendant company is such a party cannot be denied by the plaintiff because she alleges that it is the owner of the property levied upon. It is well settled that the franchises and other property essential to the existence and proper operation of a railway company cannot be seized and sold on an ordinary fi. fa. The special fieri facias allowed by the act of April 7, 1870, P. L. 58, and on which such property may now be sold is a substitute for the writ of sequestration under section 73 of the act of June 16,1836, and compliance with the conditions precedent to the issuance of the latter is necessary to authorize the former. As the plaintiff in this case did not comply with these conditions we are constrained on the appeal of the defendant company to sustain the 2d and 5th specifications of error.

On the argument at bar a motion was made to amend the record by substituting the New York, Chicago <&s S-t. Louis Hail road Company as appellant in place of tbe New York, Chicago & St. Louis Railway Company. This motion was resisted by the plaintiff and upon consideration of the same we declined to allow it. The specifications based on the claim of the New York, Chicago & St. Louis Railroad Company need not therefore be considered on this appeal. If the plaintiff proceeds in conformity with the act of April 7,1870, to levy upon and sell the property unlawfully seized on the fi. fa. allowed by section 72 of the act of June 16,1836, and the New York, Chicago & St. Louis Railroad Company, claiming to have a clear title to the same, intervenes to prevent a sale of it, the question suggested by the remaining specifications can be properly presented, considered, and disposed of. Whether the nature of the property and the interest the public has in the operation of the road, together with the complications which might arise from.a sale upon the special fi. fa. under such circumstances, would afford ground for equitable relief, is a matter in regard to which we express no opinion at this time.

Decree reversed and levy set aside at the cost of the appellee.