Hessel v. Fritz

Opinion, Me. Justice Green: "When the sheriff made return to the rule to show cause why he should not execute the writ of habere facias issued by Fritz, assignee of Rossiter v. Lefevre & Lancaster, he returned that he “ found the premises to be in the possession of one Henry Hessel, who is not a party to the present proceeding, and who claims to hold by a paramount title, as appears by his answer hereto annexed.” The answer of Hessel to the rule was annexed to the sheriff’s return, and by it it appears that the plaintiff in error was in possession of the premises, not under Lefevre & Lancaster, who were defendants in the judgment, but under a title paramount to them. Notwithstanding this return of the sheriff, and also the return of Hessel to the rule, the learned court below made absolute the rule for executing the writ, and directed the sheriff to proceed with the habere facias against Hessel. As Hessel was thus brought upon the record, and as the order directly affected his right to the possession of the premises in dispute, he is clearly entitled to a writ of error. The return made by Hessel shows that he obtained possession by virtue of a lease from Rossiter as agent for the owners, on the 16th dajr of August, 1887. The terms of the lease are set out, and also that under it he (Hessel) entered into possession, and continued therein until the time of the present proceeding. The amicable action and judgment against Lefevre & Lancaster were not entered until January 11, 1888, and Hessel was not made a party thereto, although he was then in possession. In this state of the facts it is apparent that although Hessel was in possession anterior to the judgment, and claimed by title paramount to that of the defendants in the judgment, and not under them at all, he was ordered to be ejected without hearing or trial, and without a.day in court. That such an order made in such circumstances was erroneous, was clearly pointed out in the opinion of this court in the case of. Monongahela Valley Camp Meeting Association v. Patterson, 96 Pa. 469, and for that reason the order to eject Hessel must [233] be reversed. In tbe ease just cited tlie order to eject was affirmed because, in point of fact, when tbe suit was commenced, the association claimant bad no existence; “ natural persons were in possession, were served with process, made defence, and verdict and judgment were rendered against them. Not one disclaimed possession.” Tbe facts were therefor entirely different from those of the present case. The order of April 7, 1888, directing the sheriff to execute the writ against Henry Hessel is reversed.