Quinn v. Swartley

Opinion by Mr. Justice Brown, The plaintiff is the wife of Francis J. Quinn, who was [588] a tenant of the defendant, to whom he was indebted on July 14,1911, for three months’ rent. She brought this action to recover damages for the alleged unlawful sale of her goods, distrained on the demised premises. The court was asked to instruct the jury that they should find for the plaintiff for such damages as she had suffered. This was refused, but the point asking for it should have been affirmed on defendant’s own showing that the statutory requirements as to notice of the distress had not been given to the tenant. When the constable went to the demised premises on July 14 to make the levy, there was no response to his ring at the door and he was unable to enter the house. Shortly after-wards he effected an entrance through an open cellar window and made a levy, leaving on a table a notice of which the following is a copy: “To Francis J. Quinn,. Take notice, that by authority and on behalf of your landlord P. Erwin Swartley, agent for owners, I have this day distrained the several goods and chattels specified- in the above schedule, on the premises situate No. 16 North Hirst street, in the City of Philadelphia, for the sum of Sixty Three Dollars & Costs, rent due to him the said P. Erwin Swartley as aforesaid, and that if you do not pay the said rent or replevy the same goods and chattels according to law, within five days héreafter, I shall, after the expiration of . said Five Days from the date hereof, cause, the said goods and chattels to be appraised and sold according to the Act of Assembly in such case made and provided. Given under my hand the 15th day of July, 1911. John F. Cook, Constable 34th Ward of said City.” The distress was made under verbal authority from the landlord, who did, however, on July 15 — the next day — execute and deliver a written warrant to the constable; That officer did not see the tenant or any member of his family on the day the levy is alleged to have been made. He put a watchman in charge, who testified that Quinn, the tenant, returned to his home on Saturday or Sunday fol [589] lowing the fourteenth of the month, which would be the fifteenth or sixteenth. Quinn himself testified that he returned from the seashore on the night of the fourteenth and slept in the house. But whenever he returned — whether on the night of the fourteenth or on the fifteenth or sixteenth — if he found the notice of the levy, of what did it inform him? The notice which the statute requires to be given to a tenant in distress proceedings should be in writing: Wilson v. Nightingale, 8 Ad. & El., 55 E. C. L. 1034; Snyder v. Voring, 4 Pa. Superior Ct. 196; and it must state the date of the levy, for the tenant has five full days from “the distress taken and notice thereof” within which to replevy his goods: Act of March 21, 1772, 1 Sm. Laws 370. This was the conceded right of Quinn, and if either his goods or those of his wife were appraised within five days from the time the statutory notice of the distress was given, the sale which followed was unlawful. As already said, it is not pretended that the notice was actually served upon Quinn. It was “left at the mansion house,” as the statute permits, and, if seen by him when he returned home on the night of the fourteenth, it was no notice to him that his goods had been levied upon on that day, and that on or before the nineteenth of the month he would have to replevy them, or they would be appraised on the twentieth; and, if he first saw the notice on Monday night, as he testified — the seventeenth — he learned from it that his right to replevy continued until the twentieth; but on that day the appraisement was held and the sale which followed was illegal: Davis v. Davis, 128 Pa. 100; Ehrhart v. Esbenshade, 233 Pa. 18. If it had appeared that Quinn had. received actual notice on the fourteenth of July that the distress had been made on that day, the date of the written notice would not be material, and he would have been required to replevy his goods not later than the nineteenth. This was the situation in Whitton v. Milligan, 153 Pa. [590] 376, where the levy was made on February 1st, and the statutory notice was actually served upon the tenant on the same day by a writing dated February 2, and stating that the distress had been made on that day. In other words, the tenant had actual notice on the day that the levy was made that it had been made, and the appraisement was not held until five days thereafter. In the present case nothing was developed to estop the tenant from exercising his manifest right to stand upon the notice of the distress just as it was written and dated by the defendant’s bailiff, and, as the appraisement was made before five days had expired from July 15, the appellant was entitled to recover. The second and third assignments of error are sustained. There is no merit in the other two. Judgment reversed with a venire facias de novo.