Reber v. Schroeder

Opinion by Mr. Justice Fell, This was an action of replevin for certificates of stock of a national bank, which were in 'the name and possession of George F. Iiagenman at the time of his death, and were found in his safe by his executor, inclosed in a sealed envelope, with a power of attorney transferring them to the plaintiff. There was an indorsement on the envelope signed by the decedent as follows: “ The contents of this envelope belong to Miss Sarah Eeber, No. 19 South 2nd St., Reading, Pa., and must be delivered to her at my death.” The plaintiff did not rely upon this indorsement to establish her right to the shares, but presented testimony tending to show that there had been a complete delivery of the shares to her by the decedent, and that she had placed them in his hands for safe keeping. The issue of fact was carefully submitted to the jury, and none of the assignments of error that relate to the admission of evidence or to the charge of the court has merit. The thirteenth and fourteenth assignments relate to the verdict and the judgment entered thereon, and give rise to questions under the Act of April 19, 1901, P. L. 88, regulating the practice in replevin. The defendant had entered a claim property bond and retained possession of the stock certificate. The verdict rendered was for the plaintiff without a finding of the value of the shares and damages for their detention, and the judgment entered was a general one in favor of the plaintiff. [155] At common law and before the act of 1901, where the defendant retained possession of the property, the action proceeded for damages only. The property could not be recovered from him, nor could he tender it in satisfaction of the verdict. The giving of the claim property bond put an end to the plaintiff’s title, which was thereupon turned into a chose in action to be compensated for in damages. The defendant was the only party who could have a judgment de retorno habendo: Fisher v. Whoollery, 25 Pa. 197; Schofield v. Ferrers, 46 Pa. 438; Rockey v. Burkhalter, 68 Pa. 221; Morris on Replevin, 210. The act of 1901 has changed the practice in this respect, and a plaintiff who has not been given possession of the property is entitled to a writ of retorno habendo, as well as to a writ of fieri facias, to recover the value of the property and damages awarded, and costs. It is provided 'by section 5, that where judgment has been entered for the plaintiff for the want of a sufficient affidavit of defense, for a portion of the goods and chattels replevied, he may proceed to recover such goods and chattels by a writ of retorno habendo, or the value thereof, after assessment of damages on a writ of inquiry. Section 7 provides that “ if the title to said goods and chattels be found finally to be in a party who has not been given possession of the same, in said proceeding, the jury shall determine the value thereof to the successful party, and he may, at his option, issue a writ in the nature of a writ of retorno habendo, requiring the delivery thereof to him, with an added clause of fieri facias as to damages awarded and costs ; and upon failure so to recover them, or in the first instance, he may issue execution for the value thereof, and the damages awarded and costs ; or he may sue, in the first instance, upon the bond given, and recover thereon the value of the goods and chattels, damages and costs, in the same manner that recovery is had upon other official bonds.” Before the act of 1901, the verdict rendered in this case would have been of no avail to the plaintiff, because a judgment retorno habendo could not have been entered upon it: Moore v. Shenk, 3 Pa. 13; and there was no award of damages for which a writ of execution could issue. But by virtue of the act, the plaintiff is entitled to a return of the property, and she may have a writ to enforce the right. A judgment [156] on the verdict is sufficient to sustain such a writ. She has not obtained all that she was entitled to by the trial, because of ■the failure of the jury to find the value of the property and damages for its detention, but the judgment on the verdict is not invalid. The judgment is affirmed.