McCrary v. McCully , 75 Pa. Super. 464 ( 1921 )

Opinion by

Keller, J.,

This was an action of replevin for goods seized under a distress for rent. Under the practice in force in such cases prior to the Replevin Act of April 19, 1901, P. L. 88, the plaintiff filed his narr. or declaration averring that defendants on a day named, took and unjustly detained certain of his goods and chattels, describing them. The landlord thereupon filed his avowry (and the bailiff his cognizance) justifying the taking as a distress for rent under a lease for the dwelling in which the goods were contained, setting forth its terms and the rent due and in arrear. The plaintiff then filed his plea traversing the demise or averring no rent in arrear or setting up such other defense as he might rely upon.

The Act of 1901 provides for a different practice. The plaintiff is required to file a “declaration, verified by oath, which shall consist of a concise statement of his demand, setting forth the facts upon which his title to the goods and chattels is based,” and the defendant must within fifteen days after the service of such declaration file “an affidavit of defense thereto setting up the facts denying plaintiff’s title and showing his own title to said goods and chattels.”

We have held that the Act of 1901 applies to writs of replevin issued by tenants against landlords where goods are distrained for rent: Drumgoole v. Lyle, 30 Pa. Superior Ct. 463; but from the differences inherent in their natures, some distinctions still exist between such actions and ordinary actions in replevin to determine the ownership of a disputed chattel. Thus the landlord has no right to give a counterbond and retain possession of the distrained goods: Pickering v. Yates, 51 Pa. Superior Ct. 436. This is because he does not claim adverse title to, or ownership of, the goods in suit, but only a lien upon them for his rent by virtue of his distraint.

In such cases, therefore, the plaintiff in the replevin action need only aver his ownership of the goods and their unlawful taking and detaining by the defendant to make out a prima facie case: Drumgoole v. Lyle, supra. He need not anticipate the defense that may be set up and traverse it: Ibid, p. 467. Nor need he set forth the source of his title, or' the facts upon which it is based, at length or in detail, for the ownership of the goods is not disputed and the lien of the distress applies ordinarily irrespective of title. The defendant thereupon files an affidavit of defense in the nature of an avowry or cognizance, not denying the plaintiff’s title to the goods or claiming ownership but setting forth the facts justifying their seizure under a distress for rent. The case is then at issue without the filing of a plea by the plaintiff or further pleadings customary under the old practice.

The plaintiff in this case averred his ownership of the goods and chattels in suit as fully and sufficiently as he would have been required to do under the old practice, and also their unlawful taking and detention by the defendants. This was all that he was required to aver to sustain his action. It is only where there is a dispute as to the actual ownership of goods that the facts on which the plaintiff’s title to the goods and chattels is based need be more fully and concisely stated. The form of the action in this case showed that it was founded on a distress for rent.

It is true that the plaintiff also went further than was required and averred facts which were in the nature of a reply to the position he believed the defendants would assume: Drumgoole v. Lyle, supra, p. 467; but this may be regarded as surplusage. In any event informality as to such unnecessary averments cannot defeat his action without a trial if his declaration sufficiently states a good cause of action irrespective of them.

The grounds for the demurrer filed by the defendants related entirely to such unnecessary and premature averments, and the judgment for the defendants on the demurrer disposed of the title to the goods and chattels in suit on what was at that stage of the case an immaterial matter. It may become material after the defendants have filed their affidavit of defense in the nature of an avowry and cognizance, but the issue then and at the trial will be, not title to or ownership of the goods, but whether they were lawfully seized under a distress for rent due and owing.

No opinion was filed by the court below so we do not have the benefit of the reasons which induced the entry of the judgment.

The judgment is reversed with a procedendo.