Bricker v. Doyle , 64 Pa. Super. 474 ( 1916 )

Opinion by

Porter, J.,

The action was a.sheriff’s interpleader. Our statute of May 26, 1897, P. P. 95, clearly defines the procedure to be followed in such case and the legal effect of the various steps to be taken by the parties. In Meyers v. Knight, 21 Pa. Superior Ct. 1, this court pointed out the difference wrought by the passage of this statute in the formerly existing practice in such cases. It was there said: “The practice established by the Act of 1897, is radically different from that which had prevailed under the earlier statute......The condition of the bond must be that the claimant shall at all times maintain his title to said goods and chattels or pay the value thereof, to the party thereto entitled. The bond inures not only to the benefit of the plaintiff in the execution, but to all other persons who may be adjudged to have the right or title to the goods, and successive suits may be brought thereon to the usé of such persons until the amount thereof is exhausted. The claimant cannot discharge his bond by surrendering or offering to surrender the goods; he must maintain his title or pay,” &c. The terms of the statute itself, as well as the doctrine of the case cited, following the plain language and clear intendment of the statute, leave the present appellant no ground to complain of the disposition of the. present case.

The defendants obtained an adverse judgment against Dr. William H. Bricker and caused a wrii; of fi. fa. to be issued for the purpose of collecting the amount of the debt evidenced by said judgment. In pursuance of his obligation upon the receipt of the writ, the sheriff levied on a considerable amount of personal property as that of the defendant. The writ issued on April 12,1915. On the 26th of the same month a second writ of fi. fa. on the judgment of some other creditor reached the hands of the sheriff, and of course created a lien on the goods already levied upon subject to the prior right of the first execution creditor. The present appellant made a formal claim of his title to or right of possession of all of the goods embraced in the levy. The sheriff obtained the usual rule requiring the parties to interplead, and in due time it was made' absolute. The claimant thereupon, exercising the privilege conferred upon him by the statute, after the goods had been appraised, tendered his bond in double the appraised value with an approved surety. In the issue which followed, the claimant was made plaintiff, as the act requires, and the execution creditor the defendant. Thus the burden of establishing his right, following his claim, was clearly upon the plaintiff claimant. When the bond was filed, the statute declares, “and thereupon the sheriff shall deliver said goods and chattels to the claimant.” It thus becomes clear that, by the acts of the claimant in making his claim and providing the bond necessary to support it, the grasp of the execution creditors was loosed from the property levied upon, and their recourse thereafter was confined to an action on the bond, which was made a substitute for the property released from the execution.. With the filing of the bond, the creditors, and the sheriff executing the process issued by them, no longer retained any legal control over the property levied upon. Thereafter the claimant had the right to take the possession from the sheriff notwithstanding the levy and could have successfully invoked the aid of the court to enable him to do so. It matters not there were two executions in the hands of the sheriff. The bond, as the statute declares, inured to the benefit of each and every one of them in the order of their respective liens, and each one of them could institute a separate action on the same bond until, according to its terms, the obligation of the claimant created thereby was exhausted.

Now we think it manifest, the law being so, the claimant could not at the trial, under the guise of an application to amend his statement of claim, cut in two the liability created by his bond and relieve himself to that extent. If so then, by such a simple proceeding, the execution creditors would first be deprived of their lien upon and control of the property under levy, for this result flowed from the execution of the bond. They would thereafter, when perhaps the property had been scattered, lost or destroyed, .find their security greatly diminished in value by the simple means of an amendment to the claimant’s statement. We see no error in the refusal of the learned trial judge to make an order that would be* followed by such a result.

There is nothing in the decision of this court in Feinstein v. Welischedk, 59 Pa. Superior Ct. 324, to contravene, in principle, what we have just said. In that case it appeared that more property had been embraced in the sheriff’s appraisement, which prima facie fixed the amount of the bond, than had been contained in the claimant’s original notice of his¡ claim which was the foundation of the proceeding. It was the goods so claimed that should have been appraised to fix the amount of the bond, and the claimant was not chargeable with the mistake made by another. The present record exhibits no substantial error on the part of the learned trial judge, and the appeal must therefore be dismissed.

Judgment affirmed.